JUDGING CRIMES

Hi!  I'm back!

Um.  Back.  From being away.  See, I've been --

Well, okay.  *ahem*  Yes, indeed.  I have my notes right here -- just take me a second --

One of the advantages of being on-the-verge-of-a-nervous-breakdown busy and overwhelmed - though not, I hasten to add, quite to the laced-gezpacho verge - is that others step in to do the arduous research necessary to keep this blog going. 

For instance, from one loyal reader - okay, my brother, if you must know, but he still counts - I learned that the validity of post 317 has been scientifically demonstrated.  The eerie thing is that it was demonstrated even before it was written!  In 1999, Justin Kruger and David Dunning published a research paper in the Journal of Personality and Social Psychology entitled: "Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments."  Here's the abstract:

People tend to hold overly favorable views of their abilities in many social and intellectual domains. The authors suggest that this overestimation occurs, in part, because people who are unskilled in these domains suffer a dual burden: Not only do these people reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the metacognitive ability to realize it. ...  Paradoxically, improving the skills of participants, and thus increasing their metacognitive competence, helped them recognize the limitations of their abilities.

That, I think, explains a great deal about our legal system, or at least that part of it with which I have professional contact.  To take an example from the media, The New Yorker last spring had a story about the NYPD crime lab's hair and fiber unit (or what the magazine insisted on calling its "hair-and-fibre" unit).  A pair of FBI scientists described a review they performed of 170 hair comparisons, which resulted in 80 "associations" (which, as anybody who's dealt with hair-comparisons knows, is always presented to the jury in terms of "cannot be eliminated" rather than as a "match"):

But subsequent mtDNA tests of the hairs showed that in nine cases—more than ten per cent—the samples could not have come from the same person. The number of errors was concerning, Judge [Harry T.] Edwards said. According to his calculations, he added, the study’s error rate was actually close to thirty-five per cent.

Now, Edwards is one of those people inevitably described as "respected," a term that when applied to a person who has spent many decades exercising near-arbitrary power means little more than that he's never actually been indicted.  Despite all that respect, I'm nonetheless prepared to accept that Judge Edwards is perfectly competent within the sphere of his expertise, that is, the correct standard of review to be applied in an appeal from an agency decision.  (I'm not being snide.) 

But what are the odds that he understands statistics better than a pair of scientists?  Any scientists, it doesn't matter.  Edwards spent five years in the actual practice of law a couple generations ago, then ten years bullying law students, and the rest of his career receiving lawyers bowing and scraping and tugging their forelocks.  He could be a whole lot less ignorant about statistics than the average lawyer and still know less than any recent recipient of a B.S. degree.  By orders of magnitude.

If Edwards had any metacognitive ability to assess his own knowledge of statistics, he wouldn't have spoken so confidently to Jeffrey Toobin about the calculations he scribbled on his hotel-ballroom napkin.   As it is, I'm confident he didn't understand that he was embarrassing himself in a national magazine.  He was too clueless to know he was clueless - and, I suspect, too accustomed to being treated like royalty even to perceive the possibility. 

As it happens, Professor Dunning can explain the second part of that disrespectful evaluation, too, judging from the abstract of a paper in press.  Called "Faulty Self-Assessment: Why Evaluating One’s Own Competence Is an Intrinsically Difficult Task," it makes the point that "although people receive feedback over time that could correct faulty self-assessments, this feedback is often biased, difficult to recognize, or otherwise flawed."  Think for a second about the kind of "feedback" judges get: determined attempts to manipulate by flattery.  And that's just about it.

Arrogance is ignorance backed by power, and American judges are often arrogant.  Imagine, if you can, a world in which judges were required to understand a field of human activity before asserting their authority to regulate it.  For example, what if judges weren't permitted to rule on the reasonableness of a search pursuant to a warrant until they had been the first officer through the door a couple dozen times? 

In an interview, B.F. Skinner, the great apostle of American behaviorism, once summed up the basic concept of the criminal law.  Statutes, he said, are "statements of contingencies backed up by the political systems of the country."  He meant that laws control people's behavior by providing aversive stimuli:

An aversive stimulus is the opposite of a reinforcing stimulus, something we might find unpleasant or painful.

A behavior followed by an aversive stimulus results in a decreased probability of the behavior occurring in the future.

This both defines an aversive stimulus and describes the form of conditioning known as punishment.  If you shock a rat for doing x, it’ll do a lot less of x.  If you spank Johnny for throwing his toys he will throw his toys less and less (maybe).

(That's from a very useful online summary provided by Professor C. George Bouree.)

An ideal system of criminal justice -  I think this is intuitively obvious, but it's also in line with behaviorist theory - would combine a 100% chance of discovery/punishment with a graduated system of punishments:  conditional discharge (i.e., warning); probation; weekend jail sentence; jail; prison.  In such a world, the certainty that committing a crime would produce  an unpleasant or painful stimulus would ensure that only the incorrigible - the psychopaths - would ever need to be sent to prison.

Described like that, my ideal system of criminal justice sounds like a cage with levers in a psych dept laboratory, but I think normal human society ran pretty much along those lines for long stretches of our history.  In his early masterpiece The Pursuit of the Millennium, the late Norman Cohn wrote:

To an extent which can hardly be exaggerated, peasant life [in the Middle Ages] was shaped and sustained by customs and communal routine. ...  Social relationships within the village were regulated by norms which, though they varied from village to village, had always the sanction of tradition and were always regarded as inviolable. 

Familial relationships, of course, added another enmeshing network.  In such a society, it must have been very difficult to commit a violent crime secretly.   The near-certainty of discovery must have been a  powerful disincentive. 

A possible illustration of this point, from a different historical era, is provided by Jill Mocho's terrific Murder & Justice in Frontier New Mexico 1821-1846 . (1821-1846 was the interval between Mexico's independence and the American invasion.)  Mocho's researches uncovered just 11 homicide cases for that entire 25-year span.  Doubtless many other homicides escaped  the archives because the alcalde never found anyone to prosecute - but, if anything, that only proves the point.  Social isolation made villagers vulnerable to mobile strangers, but their social self-sufficiency protected them from themselves.

Also, such tightly-knit communities, with extended kinship structures, were not good laboratories for raising psychopaths.  Too much stability.  Too many other people involved in the child's life.  Too many positive role models.

But watch what happens in behaviorist theory if the risk of discovery/punishment slips much below 100%.  The association between committing a crime and the aversive stimulus is weakened, or even ceases to exist, so that being caught and punished seems less like an effect produced by the commission of the crime and more like a random stroke of bad luck.  A different kind of association is created:

B. F. Skinner’s entire system is based on operant conditioning.  The organism is in the process of “operating” on the environment, which in ordinary terms means it is bouncing around its world, doing what it does.  During this “operating,” the organism encounters a special kind of stimulus, called a reinforcing stimulus, or simply a reinforcer.  This special stimulus has the effect of increasing the operant -- that is, the behavior occurring just before the reinforcer.  This is operant conditioning:  “the behavior is followed by a consequence, and the nature of the consequence modifies the organisms tendency to repeat the behavior in the future.”

When the risk of being caught/punished is reduced, committing crime becomes associated with pleasure: the pleasure of power and dominance over others, the pleasure of sadism, or the various pleasures available to a person who has suddenly come into money. 

It's not hard to see that the two most significant trends in American criminal law for the past half-century have been directed toward (a) decreasing the probability of a guilty criminal being punished (that's the purpose of the numerous  non-textual exclusionary rules invented since the 1960s); and (b) increasing the severity of punishment.  We've been moving aggressively toward a society that is the photo negative (will that useful metaphor survive the disappearance of film?) of the ideal.

What's really interesting is that no one - well, no one who doesn't own stock in private prison companies - believes these are healthy trends.  Given that the criminal law itself is the preeminent example of behaviorist principles in action, how did we arrive at a system that contradicts basic behaviorist principles?  Ironically enough, it's because five justices of the Supreme Court thought it would be a spiffy idea to apply the principles of behaviorism to the criminal justice system.

I think we finally have an explanation for the Supreme Court's amazing shrinking workload.  As the Washington Post reported last week, "After decades of decline in its caseload, the court is once again on track to take its fewest number of cases in modern history."

The answer is found in The Atlantic, which is running a Jeffrey Rosen interview with Chief Justice Roberts.   Roberts, it turns out, is particularly keen to issue unanimous opinions:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

There's a couple of ways of looking at that.  Either it means that the Roberts Court will concentrate on easy cases, such as slapdowns of particularly lawless decisions by the Sixth and Ninth Circuits.  (See post 210 and post 207.)  Or, more positively, it means that the Roberts Court will decide cases on narrow grounds, resolving the issue presented rather than the issue of the justices' dreams, establishing a firm rule of law that can guide lower courts in the future.

Whichever view you take, it also means that the Chief Justice - and his allies on the Court, if he has any in this campaign for unanimity, which Scalia has laughed at - will tend to vote tactically on certiorari petitions.  They'll vote against hearing cases that are particularly messy, where unanimity isn't possible.  They will, in short, help ensure the 2006 term decides the fewest number of cases in modern history.

Ann Althouse is half-offended, half-amused by Rosen's observation that the justices, when they act badly, act like law professors.  I think Rosen is close to putting his finger on the problem.  But he's not quite there.  It isn't (just, or primarily) that the justices write like professors, but that their knowledge is professor-knowledge.  It comes from books, not experience.

It's astonishing - no, that's too mild a word; it's a scandal how little our justices know about the profession they dominate.  (See post 101.)  Souter is the only one who sat as a trial judge, and he's also the only one who ever sat as a state judge.  I seriously wonder if Scalia, Breyer or Thomas has ever watched a trial from start to finish in their lives, much less tried one. 

Even Stevens, who actually was a litigator - albeit one specializing in a field, antitrust, that rarely leads to trials - hasn't been inside a trial courtroom as a participant for 37 years, since he first took holy orders. 

The quality of the justices' opinions that Rosen identifies as academic is, upon examination, imparted to them by the circumstance that they were written by bright and ambitious people pontificating on  subjects they know nothing about.  The justices approach many real-life problems as simplified abstractions because no other approach is intellectually available to them. 

There's another reason why the justices' opinions so often read like law review articles.  Their custom of hiring only absolute novices to assist them - a custom that is so familiar to lawyers that they rarely notice its extreme weirdness (see post 41) -  means that the bright boys (and, less frequently these days, girls) (more here) who assist them can't contribute anything but the skills that got them to the top of the class at Harvard/Yale/Chicago/Stanford. 

The most important skill for success in law school is the ability to repeat back to your professor the things your professor said in his or her lectures.  So what the Supreme Court clerks contribute to the justices' consideration of cases is ... the things their professors said in their lectures.

In his speech against a proposal to suspend the New York Assembly in retaliation for the colonists' refusal to knuckle under to prior Parliamentary acts, Edmund Burke helped us visualize the fundamental absurdity:

And then after you have made this Law to enforce your last: you must make another to enforce that - and so on in the endless rotation of Vain and impotent Efforts - Every great act you make must be attended with a little act like a Squire to carry his Armour.  And the power and wisdom of Parliament will wander about, the ridicule of the world.

(I admit that I haven't read quite all of Burke's Parliamentary addresses ...  I have this from Conor Cruise O'Brien's masterful The Great Melody: A Thematic Biography of Edmund Burke.)

I was reminded of the little acts trotting after great acts this morning when I received e-mail notification of today's Supreme Court deci -  Well, opinions.   In one, the court informed the anxiously-waiting world that although it had granted certiorari to tidy up some business left over from 2006, it chose not to decide the case, after all. 

In another, it had granted certiorari to decide whether a technical violation of formalistic rules for drafting an indictment (formalities that have long since been discarded by most if not all state courts) could be "harmless error" - the weird doctrine that says that a judicial act can simultaneously be a violation of the fundamental law of the land and no big deal.  But, in another damp squib, the Court decided not to decide that question, either. 

What the two cases have in common is that both reflect further attempts by the Court to define, once and for all, what is an "element" of an offense - what is sometimes called, in a culinary metaphor that doesn't bear thinking about, an "ingredient" of a crime.  (Seconds, anyone?)  And, once again - no, twice again - the Court has found it can't do it.

Back in 1970, the Court declared that the "proof beyond a reasonable doubt" standard was constitutionally required.   No big deal in itself - everybody had been using that standard for centuries.  But then the question arose: what must be proved beyond a reasonable doubt?  Well, the elements of the crime, which the 1970 case (Winship) defined as "every fact necessary to constitute the crime with which [the defendant] is charged."  Okay.  But what are the facts necessary to constitute the crime?

The succeeding 37 years have seen a ridiculous number of opinions trying to answer that question.  One line of hair-splitting tried to figure out if there was any difference between "elements" and the rebuttal of defenses - after all, if the prosecution is required to prove that the defendant didn't kill his wife in self-defense, doesn't that mean that absence of self-defense is a "fact necessary to constitute the crime"?  (Answer: yes and no.)

How about sentencing?   What's the difference between being locked up because of facts establishing an element and being locked up because of facts establishing a sentencing factor?   If a judge tacks on an extra five years because the defendant mooned the bench during the sentencing hearing, doesn't that mean, in effect, that mooning has become an element of the offense?  (Answer: yes and no.)

There must be at least 15 little cases trotting along behind 1970's big case.  Like Parliament trying to discipline the Bostonians, the Supreme Court is obliged to spend time and energy trying to get its earlier act obeyed.  And that obliges it to spend even more time and energy getting the squire cases obeyed.  Anyone who pays attention to the Court must be struck by how often it returns to the same subjects - a habit that might call to mind an even more disagreeable gustatory metaphor.

Today's two little fiascos weren't the result of the Court trying to do justice, or decide important issues, but of the Court trying (and failing) to defend its own prestige, which it so foolishly put on the line in 1970.  The words Justice Brennan wrote back then might look good on paper, provided you're not allergic to his lilac-scented prose.  But the experience of the last 37 years might nudge a non-judge to the tentative conclusion that, all things considered, it's better to figure out what your grand declaration means before you make it.

When people talk about the Supreme Court, they rarely discuss the real-world impact of the Court's decisions.  Partly, I suppose, that's because the impact is hard to measure - but that never stopped anyone from attributing every crisis, catastrophe or economic upturn to whatever president happened to be in office when it happened.  And it never stopped historians from patronizing the past, explaining how if only Napoleon had the military acumen of an associate professor, Russians would be bicycling their baguettes home today.  (Well, okay, skiing.)

But with acknowledgment that history isn't subject to double-blind trials, and moreover that, pace Scalia, it can't be fixed like a butterfly (or vampire), I think most people would agree that the Supreme Court's decisions have had an enormous impact on American society.  Lawyers are trained to think in terms of the decisions rather than their effects.  This is my first attempt to catalogue the effects, independent of the decisions themselves and without regard to their doctrinal justification or lack of justification. 

Like any greatest hits collection, it's subject to revision.  But on this particular afternoon I would rank these as the Court's most consequential contributions to American society:

• Racial segregation.  Histories of American apartheid, such as Woodward's classic The Strange Career of Jim Crow, make the point that the most grotesque formalized segregation was, to an extent that most Americans today find surprising, a 20th century phenomenon.  That's because it was only in 1896 that the Supreme Court said that "equal protection of the laws" didn't mean, as the legally unsophisticated might have assumed, the equal protection of the laws.
• The 9/11 terrorist attacks.  As discussed in post 163, the Court's fatuous decision to allow a purely political lawsuit to proceed against the President compromised the President's ability to respond to bin Ladin's first terrorist attacks against American targets.  Clinton was severely criticized, among others by the current governor-elect of Nevada, for attempting to assassinate bin Ladin and destroy the al-Queda infrastructure - the theory being that he was only trying to divert attention from a pseudo-scandal remembered today only as a punchline.  As the 9/11 Commission reported, "the 'wag the dog' slur[ and] the intense partisanship of the period ... likely had a cumulative effect on future decisions about the use of force against Bin Ladin."  Which is to say, the Supreme Court likely had an effect on those decisions.  Does anyone today doubt that those decisions contributed to 9/11 - that Clinton's mistake wasn't being too aggressive, as the Republicans said in 1998, but the reverse?
• The Iraq war.  In the recent midterm elections, I think nobody other than Rupert Murdoch (that is, Fox News) was defending the Iraq war.  At least, no one defends the conduct and present reality of the war, even if they believe the original goals (whatever they were, exactly) remain valid.  No one knows how to avoid the catastrophe barreling down on us like a wrong-way train on our track.  Would we be in this national lose-lose situation without the Court's two Bush v. Gore decisions?
• The Civil War.  The one, perhaps, was truly inevitable, but Chief Justice Taney's invention of the original-intent school of constitutional "interpretation" - a premodern precursor of postmodern literary criticism (see post 194) - may have accelerated its advent, and it certainly used the moral authority of the Court to muddle the constitutional case for living up to the ideals expressed in the Declaration of Independence - you know, that bit about "all men are created equal".  The post-Civil War Supreme Court stuck very closely to Taney's constitutional conception, culminating in its 1896 nullification of the equal protection clause.
• The lynching of Leo Frank.  This one, unlike the others mentioned so far, actually had a legal justification (although it's a justification the Court discarded just eight years later).  In 1915 the Court declined to involve itself in a state prosecution when the allegation was that an innocent man was condemned to death in a trial dominated by a racist mob.  The Court's decision  led directly to the innocent man's painful, degrading death.  There are many excellent books on the case, including this one, and numerous superb websites, including this.  The decade following the Court's 1915 decision was - not by coincidence, I think - dominated by anti-black pogroms (usually euphemistically called "race riots") and institutionalized anti-Semitism.
• Political races decided on the basis of fundraising and TV ads.  In the wake of Watergate, Congress passed comprehensive campaign finance reform, which the Court gutted in one of its most fatuous-ever decisions.  The Court explained that, because money made TV ads possible, therefore money was speech protected by the first amendment.  By the same logic, because the cord to your living room lamp makes illumination possible, therefore the cord is electricity.  (See post 133.)   The Court gave television stations a huge financial incentive to limit election coverage - why give away what you can sell?  The diminution of television journalism, in turn, has helped to reduce our nation's political life to the present sad spectacle of multi-millionaires running for office on platforms no longer than 30 seconds, consisting entirely of appeals to emotion and mostly compounded of personal attacks and lies.  (See post 180.) 
• Anti-Asian discrimination.  The extraordinary violence visited upon Asian immigrants to America in 1880s is something most Americans prefer not to know about.  See this website, and this one, and this one.  In 1889 the Supreme Court found nothing at all wrong with anti-Chinese legislation.  But, it must be said, at least it didn't go quite so far as the California Supreme Court, which ruled that the Chinese couldn't testify in court, even - or especially - when they were the victims of violence or economic exploitation.  But then, the U.S. Supreme Court had no need to rule after the California court did.

It might well be said that the Supreme Court wasn't solely responsible for any of the above.  But then, the same could be said with respect to any economic upturn/downturn, and yet we don't hesitate to credit/blame our favorite/most despised elected official.  I think the Supreme Court had more influence on each of the above than any president has ever had on the unemployment rate.  But tell that to the ghost of Herbert Hoover.

I visited Vancouver in the 1980s, and as I was lingering over a long dinner in one of that city's many delightful downtown restaurants, I noticed a woman walking alone on the sidewalk outside.  The unbidden thought crossed my mind: "Canadian hookers are very well-dressed."

Almost as soon as the thought formed, I experienced a kind of shock of shame, because of course the woman wasn't a hooker at all, just someone walking from point A to point B.  She was well-dressed because she was a business person or maybe a lawyer.   Seeing her (and other well-dressed women, too) walk downtown in a big city after dark was, I'm sorry to say, something unusual in my North American experience. 

That was the moment when I first understood that crime, and the enforcement of the criminal law, is social policy.  (See post 160.)

Lawyers are trained to think in terms of boxes.  "Torts" are here, "criminal law" is there, and "social programs" are way over there, on the other side of the fence surrounding the judicial branch.  But, like so much else we learn in law school, that's just words, not reality.  When you read an anecdotal report of sex workers' interactions with police officers it's easy enough to see that the police are enacting the government's attitude toward certain of its citizens - specifically, the government's rejection of any responsibility for their well-being.

What bullying cops do to victimized streetwalkers is just a one tiny aspect of what the entire criminal justice system does to all victims of crime.  It's all social policy, every bit as much as spending on the schools.

The crime rate is a measure of a society's willingness to protect its vulnerable members from harm.  It tells us whether society's most powerful members - a group that, by any criterion, includes judges - are willing to accept responsibility for the well-being of the least powerful.

Victims of violent crime are, by definition, the most vulnerable members of society.  They are overwhelmingly  poor.  (See post 148.)  Members of minority groups, the young, the seriously mentally ill, the Deaf, illegal immigrants - these are the people who are seriously endangered by violent crime.

In the 1980s, women who weren't hookers avoided walking alone at night on downtown streets because it was so dangerous.  (It was, of course, extremely dangerous for sex workers, too.)   I'm inclined to think the situation has improved slightly in the intervening years, because I notice more women walking alone after dark in the dangerous city where I live - but then, the reason I notice increased numbers of solitary female walkers is because they remain relatively unusual.

It's not that Americans are so much more criminal than Canadians, or anyone else.  Our overall crime rate, including all types of property crime, is pretty much in the international ballpark (or pitch).   We're just more violent, or, to put it more precisely, our government doesn't protect the vulnerable from violence.  And the unit of government that's most resistant to protecting the vulnerable is our criminal court system. 

Recently our Supreme Court has come down hard against prosecuting domestic violence and child abuse cases.  (See post 148 and post 155.)  The hostility of the courts to female victims of violence is notorious.  (See post 47  and post 139.)   Lawyers, judges and law professors think of these as legal issues, to be analyzed by legal means, producing legal results.  And that's all.

When we debate policies put in place by the democratically-responsive branches of government, we look at their effects, not just their good intentions.  An example is the debate produced by the National Intelligence Estimate reporting that the war in Iraq is producing more terrorists than it eliminates - something The Economist said was "stating the obvious."

Or, to pick an example more palatable to conservatives, there's the perverse economic incentives of welfare programs that, with the noblest of intentions, wind up encouraging socially-destructive behaviors.

But, oddly, we don't debate judicial policy in terms of its effects, but only of its intentions.  The Supreme Court discovers a problem, treats it with a new rule fetched from one of the dustier corners of the suprisingly-cavernous Constitution, and announces the problem to be cured or remedied - and for lower court judges, reporters and law professors alike, that's usually that.  There are no consequences, except perhaps the difficulty of implementing the rule in the lower courts.

But whether judges choose to recognize it or not, there is a reality outside the courtroom.  And the consequences of judicial decisions can no more be confined within the four walls of the courtroom than cosmic rays can be blocked by the courthouse roof.

The reason the US is more violent than Canada is that our government tolerates more violence.   And by "our government," I mean: our courts.  Our democratically-responsive branches of government have enacted policies against violence, but our judicial branch resists their enforcement.  The judges themselves would say they are only enforcing the Constitution (with "the Constitution" defined as the collected works of the Supreme Court), but that - of course - only explains why they do it, not what they are doing.

Judges have determined that we should live in cities where women don't walk alone at night, unless they're hookers.  And the fact that most of our judges don't understand that they've done so - and would even deny the reality that they have - is perhaps the truest measure of their institution's dysfunction.

In its series on New York's justice courts (see post 172), the Times recounted the argument advanced in an unsuccessful attempt to have the system declared unconstitutional:

Attorneys for an upstate teenager facing a jail sentence argued that the right to a lawyer, guaranteed by the Constitution, was meaningless if the judge lacked the training to understand the lawyer’s arguments.

That's not so much a denial of the right to a lawyer as a frustration of the right to be judged according to law as opposed to some judge's gut feeling.  But it's hardly a problem unique to courts run by retired lumberjacks, as the reporters seem to think.  (See post 106 and post 159.)

There's a disillusioning moment in every young lawyer's life.  It happens when she stands at the podium, and clinches her argument with an unanswerable point, and looks up at the imposing figure in the black robe, and there's no light in the judge's eyes, just the blank impassive stare of the diplomat waiting for the translation through his headphones.  Except the judge isn't wearing headphones, and no one's translating.  He's just ...

"Dumb" isn't quite the word.  Most JD-holding-judges have IQs in three digits, although there are exceptions.  The worst type of judge isn't stupid - he just isn't smart enough to realize he's not nearly as smart as he thinks he is.  That's the type of judge who, confronted with an innovative argument, will be irritated at the lawyer, make belittling remarks, and redefine the issue in more conventional terms.

The Times articles also contain this bit:

One justice seemed not to fully understand that criminal charges must be proved beyond a reasonable doubt, wrote the county court judge, Robert G. Main Jr. Another justice skipped over the matter of the constitutional guarantee of a lawyer. Immediately after a woman charged with fraud said she could not afford an attorney, Judge Main said, the village justice took her guilty plea instead of appointing a lawyer.

Probably most judges who have graduated from law school could avoid those particular mistakes.  But that doesn't mean every lawyer-judge understands double jeopardy, or search and seizure law, or the technicalities of federal habeas corpus.

In my experience, the worst appellate judges tend to be highly successful lawyers who retire into a prestigious judgeship as the capstone of a career.  And these appellate judges are, almost by definition, not stupid people.  The problem is that lawyers who have made their pile by dominating the courtroom tend to think they already know what they need to know.  And those who practice civil law look down on lawyers who practice criminal law.  I've practiced in both areas, and I know.

Being a rich civil lawyer is very prestigious.  But most lawyers practicing criminal law don't get rich.  In every town, there are a handful of star criminal defense lawyers who do quite well, thank you, but a far larger number who work for the public defender or on public defender contracts.  And all of the prosecutors are government employees.  Because they're not paid well (PDs out there should pause at this point to snort in derision at the euphemism) their field is the most unprestigious of all.  (See post 166.)

Now, the reason talented people are willing to practice criminal law despite the lack of prestige and the (relatively) rotten pay is that the work is meaningful, intellectually challenging, confers a significant social benefit, and so on.  People demand lots of money for doing work they despise, and even more money to do work  that makes them despise themselves, but they're willing to do work they enjoy for less.  That point is obvious in itself, but it's understandably lost on those who have spent their lives amassing prestige (and dough) by doing what Ian Dury memorably called "business you don't like".

A civil lawyer who meets with great success in a prestigious field will tend, naturally enough, to assume that his own career arc is the normal one, the one that every lawyer aspires to.  After all, it's the path he chose, isn't it?  So that means his field is the best area in which to practice.  And his success means he's the best lawyer practicing in the best field, doesn't it?  That's just good old logic.  It follows that lawyers who practice in a low-prestige area like criminal law must be weak sisters afraid to play with the big boys.

When those lawyers become appellate judges at an advanced age, and are asked to decide their first criminal cases, they begin with the assumption that any field so dominated by sub-optimal lawyers needs the touch of a high-class professional to set things right.  So you get ignorant, sweeping decisions intended to tidy things up.  The people who know what they're doing have to spend the next 20 years doing what Donald Regan once said he did for Ronald Reagan, following the elephant in the circus parade.

The ignorance of New York's non-lawyer justices might start at a lower level than the ignorance of the highly-respected newly-minted appellate judge.  But then, the damage inflicted by the local justices is limited.

A Reuters piece says Democrats are up in arms about a TV movie about the years before the 9/11 attacks.  The movie supposedly "suggests the Clinton administration was too distracted by the Monica Lewinsky sex scandal to deal properly with the gathering threat posed by Islamic militants."

That's a change from what folks were saying in 1998, when President Clinton ordered a military attack on the Afghanistan training camps run by Osama bin Laden.  Back then, the accusation was that Clinton was "wagging the dog" - indulging in a showy attempt to distract the nation from the far more serious issue of whether fellatio counts as having sex.  (The phrase came from the name of a movie based on the tired Hollywood conceit that Hollywood's hollowness, venality and deceit is nothing out of the ordinary in American life.)

Jim Gibbons, currently running for governor of Nevada, voiced his opposition to military strikes against bin Laden, saying: "I think this has all the elements of that movie.  Our reaction to the embassy bombings should be based on sound credible evidence, not a knee-jerk reaction to try to direct public attention away from his personal problems."  Here's a lot more in that vein.

The foreign press was, if anything, even more brutal.  The Sydney Morning Herald (which bills itself as "Australia’s most prestigious daily newspaper, reaching discerning and involved readers who trust its independence, authority and integrity" - Crikey!  Subtlety isn't the Aussies' strong suit, is it?) ran a long piece on August 29, 1998, reporting that the Americans' source for believing bin Laden was involved in terrorism may have been a Mossad plant, and adding: "Business people, diplomats and aid workers of other countries, including Australia, have become unwilling front-line soldiers in a war declared by a US president who, according to his critics, took up the cudgels merely to distract a domestic audience from his much-publicized sexual indiscretions." 

(Note the reporter's description of one of bin Laden's murderers: "'We knew we were under attack and we wanted to hit back, but we could do nothing,' said Maaz Ali, 19, of Bahawalpur, in Pakistani Punjab, tears of frozen rage brimming in his eyes, as he recalled the night the sky lit up over Khost."  Must have been pretty cold that August.  And it was pretty observant of the reporter to notice, wasn't it?  I mean, I can't begin to count the number of times I've talked to people without even registering whether their rage was frozen or not.)

So back in 1998, Clinton's attempts to take out bin Laden were denigrated as attempts to distract the nation from the scandal of his sex (or, perhaps, non-sex) life.  Now, in 2006, Clinton's failure to take out bin Laden is viewed as evidence that he himself was distracted by that scandal, or perhaps by the philosophical question it raised.

My own long-held suspicion is that the "wag the dog" meme made it politically very difficult for Clinton to take more forceful action against bin Laden.  Which is another way of saying that it contributed to 9/11. 

Justice Stevens was guilty of perhaps the most fatuous statement ever made by any judge in American history when he said that Paula Jones' suit against Clinton "appears to us highly unlikely to occupy any substantial amount of [the President]'s time."  The lawsuit authorized by the Supremes set in motion the investigation into Clinton's relationship with Lewinsky, the White House intern.

When the Court decided that anything a federal court does is, by definition, a higher priority than anything a President does - and that, I'm afraid, is the essence of Stevens' opinion - it created a whole host of cascading problems for Clinton.  At the very least, the Court's decision complicated Clinton's response to bin Laden's murderous attacks against the American embassies.

And doesn't that lead to the conclusion that the Court bears some responsibility for bin Laden's follow-up to those attacks?

The essence of a constitutional ruling - any constitutional ruling - is that it restricts democracy.  It defines an area of public life over which the people are forbidden to act through majority rule.

Jeffrey Rosen's new book is called The Most Democratic Branch: How the Courts Serve America.  I haven't read it, and I assume Rosen's publisher insisted on the most provocative possible title, so I'll resist rising to the bait.  But I did read a review by Thomas Healey over at FindLaw.  Healey says a couple of very interesting things.  One of them is this:

Perhaps the biggest strike against Rosen's argument is that it fails the Brown [v. Board of Education] test. For the past fifty years, legal scholars have measured each new theory of constitutional interpretation and judicial review against the Supreme Court's school desegregation decision. If a theory can justify the Brown decision, it is viewed as at least plausible. But if a theory would require a different result in Brown - as would, for example, strict adherence to the original intent of the framers of the Fourteenth Amendment - then it is considered fatally flawed. The idea is that Brown is now a keystone of our system; any theory that would remove it would topple the whole structure too, and is thus untenable.

But the great achievement of Brown wasn't that it ended segregation in public schools at a single stroke - it didn't, of course - but that it overturned Plessy v. Ferguson, one of the handful of Supreme Court decisions that can rightfully be termed not just wrong but evil.  In Plessy, the reactionary justices of 1896 capped their their Court's 41-year campaign to reverse the political consequences of the Civil War.  With Plessy, the United States completed its surrender to the Confederate States.

It wasn't quite an unconditional surrender - out-and-out chattel slavery remained off limits - but with that exception the justices had, by 1896, given up everything the Union dead had won for the former slaves.  The essence of Plessy was simply this: American courts were prohibited from enforcing the equal protection clause of the 14th amendment.

Brown's triumph was that it overturned Plessy.  The Court's enduring shame was that 58 years elapsed between the two decisions.  Those 58 years were extraordinarily brutal years for black Americans.  But the crackers who took their children to lynchings were only expressing in concrete terms what the Court had said - obliquely, of course - in Plessy, that black people weren't entitled to the protection of the laws.

According to Healey's description of the received wisdom in academia, the key test of any constitutional theory is how it would justify the Supreme Court's acknowledgment that it had violated the United States Constitution for 58 years.   I think a far more meaningful test is: how would it eliminate the need for future Browns?  How would it prevent future Plessys?  

The test Healey describes is peculiar not only because it asks the theoretician to justify the Court's attempts to remedy its own wrongdoing, rather than to prevent the wrongdoing in the first place; but also because it asks the theoretician to eliminate that distortion in one particular way, even though we now have 52 years of proof that it wasn't a particularly effective  way.

The underlying concept is: nothing is better than Brown.  It's the best of all possible constitutional worlds.  Anything different from Brown is, therefore - by definition - substandard.  It's difficult to imagine a better illustration of the deep conservatism of the legal academy - conservatism so deep that most legal academics are wholly unaware of it, the way most Americans are unaware how deeply their personalities are the product of their nationality until they live abroad.

Healey also writes:

And what of constitutional principles? Rosen spends little time discussing the merits of various decisions, focusing almost exclusively on their practical effects.

I never thought I'd hear a professor explicitly distinguishing between a decision's "practical effects," on the one hand, and its "merits," on the other hand.  Imagine that distinction applied to Congress:  "Sure, the Act fails to achieve its stated goal, and produces all kinds of unfortunate unintended consequences, but look at the intellectually satisfying reasoning found in the Congressional Record!"

Or as applied to the executive: "Admittedly, the nation's foreign policy is a shambles, making the nation hated around the globe and bringing us that much closer to nuclear Armageddon.  But the Secretary of State's speech was nothing short of masterful!"

In Robert Lacey's very enjoyable Great Tales from English History (vol. I), a model of rigorous popular history (that's not an oxymoron, as most professional historians assume), we read this anecdote about King John:

It was not unusual for a medieval king simply to eliminate rivals, as John had done early in his reign when he imprisoned the son of his late brother Geoffrey, who was never to be seen again.  But when John heard that a noblewoman had been gossiping about Arthur's disappearance, he had the culprit jailed with one of her sons and left them both to starve to death.

This John was Robin Hood's (or, rather, Hobbehod's) nemesis, the prince who ruled as regent while his brother Richard the Lionheart was away stoking Islamic hatred for the benefit of posterity.  This same John was forced to sign the contract so sentimentalized in conventional English and American legal history as the Magna Carta.

Modern-day King Johns aren't nearly so arbitrary.  When they learn that a person is saying unkind things about them, they no longer throw the person into prison to starve to death.  Rather, they merely threaten to revoke the person's right to practice his or her profession.

That's what happened to Geoffrey Fieger, the famous newshound, lawyer and would-be politician from Detroit.  He made some rude comments about three judges of the Michigan Court of Appeals.  You can read the comments on pages 3 and 4 of this Michigan Supreme Court opinion.   They're rude in a wannabe-Howard Stern style, involving the use of the word "ass" and fairly predictable suggestions regarding both Fieger's ass and the asses of the judges.  He also suggested that the three judges had changed their names from Adolf Hitler, Goebbels and Eva Braun. 

(He didn't "liken" the judges to Nazis, as the Associated Press reported.   He said - assuming the Michigan Supreme Court reported his words accurately - that they actually were Hitler Goebbels and Braun, now living in Lansing under assumed names.  Thus, when the Michigan Supreme Court emphasized the importance of ensuring the public was not "misled" by Fieger, they were expressing their concern that citizens of their state would conclude that the Nazi honchos not only had mastered the art of delayed self-reincarnation but were engaged in a comeback via the Michigan Court of Appeals.)  (You have to admit, it's a pretty alarming prospect.)

Imagine for a moment that the Michigan Legislature passed a criminal libel statute that provided that calling an individual legislator a bad name is a criminal offense, punishable by a maximum $10 fine.  How many nanoseconds do you think it would take the Michigan Supreme Court to declare the statute unconstitutional?

But it's different when the judges' own asses are on the firing line.  In ruling that Fieger had no constitutional right to speak disrespectfully of judges' backsides, a 4-3 majority of the Michigan Supreme Court wrote:

In establishing rules designed to deter and sanction uncivil and discourteous conduct on the part of lawyers, we believe that this Court is doing far more than protecting the sensitivities of judges; rather, we believe that we are upholding the integrity of that which is being carried out by the judicial branch of government.

The performance of these responsibilities requires a process in which the public can have the highest sense of confidence, one in which the fairness and integrity of the process is not routinely called into question, one in which the ability of judges to mete out evenhanded decisions in not undermined by the fear of vulgar characterizations of their actions, one in which the public is not misled by name-calling and vulgarities from lawyers who are held to have special knowledge of the courts, one in which discourse is grounded in the traditional tools of the law - language, precedents, logic, and rational analysis and debate.  To disregard such interests in the pursuit of a conception of the First Amendment that has never been a part of our actual Constitutional would in a real and practical sense adversely affect our rule of law, a no less indispensable foundation of our constitutional system than the First Amendment.

Now, we must assume that Chief Justice Clifford Taylor, and the three justices who joined his opinion, are literate and intelligent people.  But as they cobble together ready-made phrases they seem hardly aware of what those phrases mean.  Are Michigan judges actually afraid of being called names?  It's hard to believe.  But if the judges aren't afraid of that, how could such a fear "undermine" their ability to perform their jobs competently?

"Undermine" in the sense in which Taylor used the word is a metaphor.  It refers to the ancient military tactic of digging beneath the walls of the besieged city.  It's what Grant was trying to do with the crater before Petersburg.  A person who uses the word to describe an effect on something as vast, diffuse and abstract as the ability of an entire class of people to perform its job competently is obviously not thinking about what he is writing.

I don't believe that Taylor meant what his rhetoric assumes to be a fact, that there are judges in Michigan so overcome by the fear of being called a bad name as to be unable to perform the most basic function of their jobs. 

So why did he say it?  Because he wrote his argument backwards.  (See post 137.)   That is, he reached his result first: that prohibiting the making of vulgar suggestions concerning the rear ends of judges is "no less indispensable [a] foundation of our constitutional system" than the Constitution itself.   Having committed himself to a conclusion whose only recommendation is the emotional satisfaction it affords judges, he had to search around for something - anything - that might at least disguise its indefensibility.

So he switched on the Latinism, turned verbs into nouns, packed 105 words into a single sentence and even went to the trouble of denying in one paragraph what he admitted doing in the following paragraph: he wasn't merely "protecting the sensitivities of judges", he was protecting judges from "the fear of vulgar characterizations of their actions". 

"The performance of these [judicial] responsibilities requires a process in which ..."  But in what sense are the five items on the list that follows this opening actually required?   Imagine for a moment that I were to say in this public forum that Taylor is, on the basis of this opinion, a barely-literate thug in a black robe incapable of thinking his way out of a paper bag.  If I said that, would the Michigan judicial system shudder to a halt?  Since I did say it, can everyone with a Monday morning court date in Detroit just stay home?  No?  Well, then, I guess suppressing such talk isn't really required, is it, Mr. Chief Justice?

Compare Taylor's 105-word sentence to the Lacey quote with which I started this post.  Lacey speaks clearly and directly.  Taylor is hardly coherent.  Yet what Lacey describes is remarkably similar to what Taylor is doing.