JUDGING CRIMES

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

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

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

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

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

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

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

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

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

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

The cultural illiteracy of lawyers, a highly-educated and hyper-articulate lot, is a mystery to me.  How can  intelligent people know so much and so little at the same time?   Take, for example, Chief Justice Rehnquist quoting Iago, literature's greatest lying defamer, to demonstrate the preciousness of reputation. 

Shakespeare thought he was being ironic, making the groundlings shout, "Don't listen to him!", and demonstrating how overblown rhetoric can contribute to a sensible man losing his senses.  (Who honestly believes his or her purse is "trash"?)  But our Chief Justice proved as gullible as Othello himself.

The latest example comes from an ABA Committee: "A criminal conviction is, in a very real sense, a 'mark of Cain,' which sets its bearer permanently and indelibly apart from the rest of society."   The committee's sole cited  source for that allusion was a newspaper article by blogger Webb "I shoulda stayed a judge" Hubbell (whose notoriety, it might be argued, makes his experience a wee bit atypical among convicted felons, and whose credibility, one might have thought, would be relatively low among lawyers, in particular). 

The committee didn't cite to the other, better-known source for the phrase: 

 And the LORD said unto him, Therefore whosoever slayeth Cain, vengeance shall be taken on him sevenfold. And the LORD set a mark upon Cain, lest any finding him should kill him.

Or, if Tyndale is too 16th-century for your taste, here's the New International Version:

Then the Lord put a mark on Cain so that no one who found him would kill him.

The Contemporary English Version (a/k/a Today's English Version) may win the award as the clearest of all:

So the LORD put a mark on Cain to warn everyone not to kill him.

The "mark of Cain" was placed upon its bearer to protect him, not to cast him out from society.  The protection was necessary because he was already set apart from the rest of society ("a fugitive and a vagabond shalt thou be in the earth"). 

So when the ABA committee said that a criminal record is "in a very real sense, a 'mark of Cain,'" it was saying the opposite of what it meant.   Furthermore, since the original mark was, you know, a mark (here's a variety of translations of 'owth from the Hebrew), the committee was using "in a very real sense" to mean "figuratively speaking" - a wordier version of the illiterate use of "literally" as an intensifier. 

The committee's proposal was to seal all criminal court records, in defiance of the sixth amendment's guarantee of a public trial:

The commission wanted the ABA to favor legislation at all levels, "to the extent permitted by the First Amendment," to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only.

Now, even someone as commercially-inept as myself can see that if the government records were sealed after initially being made public, a private market would instantly develop.  The committee's proposal would  make criminal records as unreliable, as difficult to correct, and as routinely relied upon as credit reports are today.  (Hey, but you could hire a lawyer to clear up the misunderstandings!)

But its absurdity is the least-interesting thing about the proposal.  Like Whitman, it contained multitudes.   It was  an anthology of the modern American judiciary's greatest hits.  First, there's the preference for constructed reality over truth.  The whole point of the proposal, after all, was to prevent people from discovering truthful information, and instead to trick them into believing in an alternative reality - exactly what criminal court judges do to juries when they suppress or otherwise exclude relevant evidence.  Truth is not a legal value.

Second:  But above all else, truth about the legal system is to be tightly-controlled.  The people shouldn't be told more than is good for them.  It's more important for the judiciary to have a good reputation than to deserve one.  (See post 272 and post 287.)   So information about what actually goes on in one-third of the government needs to be parceled out on a need-to-know basis.  And, tcha, you know what? - you don't need to know.

Third: There is no reality outside of the courtroom.  If a person is found not guilty of embezzlement, that means the person didn't embezzle.  Therefore, if a prospective employer declines to hire the acquitted embezzler to keep the company's books, it's "unfair discrimination", and drastic steps must be taken to ensure that future decisions are based on less information. 

Fourth:  The job of the legal profession, whether acting through its judges or its trade associations, is to control the behavior of non-lawyers.  Specifically, its job is to prevent people from acting in ways that the people consider rational.  That's why, for example, relevant evidence is concealed from juries - to prevent them from drawing rational conclusions from it.  (See post 40.)  So if a person hiring a bookkeeper would think it rational to consider whether the applicant had a history of arrests for embezzlement, then the legal profession's job is to prevent the person from becoming aware of that fact.

Fifth:  So long as you profess your noble intentions, unintended consequences are of no concern.  Since the committee wanted to stop one type of discrimination, and stopping discrimination is good, therefore it simply didn't matter what other effects its proposal would have had.   In the same way, allowing a person to get away with raping and murdering a child, for example, is trivial in comparison to the glory of advancing an important principle - even if the principle in question had to be invented on the spot.

Sixth:  All decisions of significance to the legal system are made by legal professionals.  If a decision is made by anyone else - say, a prospective employer or landlord - then, by definition, it's not something the legal system needs to respect.  That's what the committee was saying when it proposed that the records be sealed "to the extent permitted by the First Amendment."  They meant: to the extent permitted by judges interpreting the first amendment, which is the same as saying: to the extent permitted by judges, period. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The title doesn't promise the under-the-bedclothes magazine for teenaged boys of all ages that ate Penthouse's lunch in much the same way Wal-Mart and Target divided K-Mart's among themselves.  ("It's a deal.  You get the high-margin items, we get the high-volume, and K-Mart gets to keep everything else.")

No, I'm earnestly trying to distill the maxims that govern judicial work.  I find they tend to come in pairs, like:

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

Judges are pretty open about this pair, although you often have to search for them beneath puffy clouds of words.  Justice Scalia was being unusually direct (and terse) when he acknowledged that the Court's recent revision of the sixth amendment has the effect of frustrating society's efforts to curtail domestic violence, adding this mea non culpa:

This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.

In that passage, there's only a thin veneer of rhetoric covering the two maxims.

More typically diffuse is a famous passage by the late Judge Richard Arnold of the Eighth Circuit (the federal appeals court that hears cases from a Big Dipper-shaped slice of mid-America stretching from North Dakota to Arkansas).  (Arnold was profiled in post 235.)

You only need to know two things about this passage.  First, Arnold announced a new constitutional doctrine, one invented by himself and his two colleagues, which was promptly overruled by the U.S. Supreme Court.  Second, the effect of his new doctrine was that jurors in a murder case could not be informed that the victim, a 10-year-old girl, was dead.  Her death ceased to have any reality inside the courtroom.  (O death, where is thy sting?  Right here, outside the courtroom door.)  Here it is:

It will inevitably be remarked that our opinion focusses more on the conduct of the police than of the alleged murderer. If Williams is indeed guilty, and if he goes free as a result of our holding, then complete justice may not have been done, even though Williams has served 14 years in prison. A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.

(The link is to a recent Second Circuit case that quoted this passage.)

This is a remarkable passage in any number of ways, not least of them being that the New York Times singled it out for quotation in Judge Arnold's obituary (scroll down).  Another is that Justice Brennan termed it an "insightful and stirring defense of the constitutional limitations placed on law enforcement authorities" (78 Minnesota Law Review at 2) - even though, if you'll notice, by its own terms it applies to judges and Supreme Court justices, too, a point so foreign to Brennan's thinking that he apparently didn't even perceive it, the way those who speak one language fluently can have no phonemic awareness of certain sounds in another language.

(The linked Wikipedia article provides as an example Japanese people and the "R" and "L" sounds.  It might also have mentioned the difference between "pin" and "pen" - which I've been told exists, but can't hear in normal speech.)

But for purposes of our maxims it's enough to note that:

• Judge Arnold accepted that his opinion didn't produce "perfect justice".  Imperfect justice - that is, justice that isn't just, a/k/a "injustice"  - is a pretty remarkable thing for any justice system to accept as a norm, much less (as Brennan's encomium suggests) an ideal.
• Arnold disclaimed any personal responsibility for the injustice he produced, saying it was merely "one of the costs" of the Bill of Rights.
• The particular constitutional doctrine was invented by him in the very same opinion that said our "country is built on the assumption" that the doctrine was a good idea - yet another example in our case law of an anomaly in the space-time continuum.  (Curiously, when the doctrine was rejected by the Supreme Court just one year later, causing the country's foundation to crumble in part, the effect was felt in California, not Arnold's Arkansas or the dead girl's Iowa.)

So Arnold was saying he had the power - indeed, the responsibility - to invent new constitutional doctrines even when they produce injustice.  But he wasn't responsible for the injustice his invented doctrines produced, because our "country is built on the assumption" (assumption, mind you, not a principle or declaration) that justice in such cases would actually be undesirable.  (Or, rather, that "the cost is worth paying" - when judges resort to vague metaphors, it usually means they want to disguise their meaning, probably most of all from themselves.)  Hey, don't blame me - I'm just channeling the Framers!

Now, it might seem at first glance that the two maxims are, as lawyers like to say, "in tension with" each other, even if they aren't quite contradictory.  Doesn't it produce intellectual disquiet in judges - cognitive dissonance - to hold them both in your head at one time?  No, obviously.  Eric Hoffer explained why not (see post 273): both maxims are required by "the Constitution" and devotion to "the Constitution" is a higher duty than intellectual coherence.  The maxims offer power without guilt.  Their incompatibility isn't a flaw: it's the secret of their appeal.