JUDGING CRIMES

The end of the Supreme Court's term had me feeling a strange and unexpected emotion: pity.  These nine people seem so badly out of their depth that criticizing them seems almost unfair, like making fun of your local public-access-TV host and perennial candidate for office.

Almost.  Because the fruitcake gadfly (fruit fly?) who drives around town in an old beater with bumper stickers where the paint job used to be can only tell the rest of us how we really ought to live our lives.   We don't have to pay attention, and most of us don't.

The Supreme Court makes us obey.

It's the power of commanding obedience that paints the target on the justices' robes, even if criticizing their most recent productions feels just a bit like pointing out flaws in the dismount of a Special Olympics gymnast.

In the course of a few minutes this past week, the justices  explained to us that there is only one correct way to interpret the Bill of Rights, and that is to determine the meaning given to its words during the "founding era";  and to "'draw[] its meaning from the evolving standards of decency that mark the progress of a maturing society'".

Now, I don't mean to be any more disrespectful of the Supreme Court than its productions deserve.   But this stuff isn't serious.  The justices don't even seem to be trying any more. 

At best, they've recognized that their attempts at coherence have failed and have thrown up their hands, giving us their rough drafts so they can get out of Washington before the worst of the summer heat to enjoy their three-month vacations. 

At worst they're coming close to admitting -- not in a single opinion, but in these two opinions considered together --that the whole project of "constitutional law" is eyewash, a mere flapping of the magician's cape to distract our attention from what's really going on.

Both of the recent opinions are interesting for what they say about the Court rather than for what they say about the law (really, there is a difference), and both will get the extended treatment soon.

Imagine a history professor who built his career on the study of presidential press releases, viewing them not as eruptions of public mendacity or even as examples of public relations technique but as the true measure of each administration's achievements. 

To evaluate Richard Nixon's time in office, this scholar would diligently read every word that ever emanated from Ron Ziegler's office – and nothing else.  To understand the achievements of George W. Bush, our professor would carefully parse the words of Tony Snow and Dana Perino. 

If an academic rival were to publish an article questioning President Bush's sincerity, our historian could write a letter to the editor of a highbrow magazine couched in the barbed politesse of academic infighting, crushing his rival with the unanswerable riposte: a quotation from Ari Fleischer conclusively proving the contrary.

It shouldn't be hard to imagine such a professor, because that's how our legal academy operates.  When our law professors study the United States Supreme Court, they read the Court's press releases and treat them as full and entirely satisfactory explanations for the Court's exercises of power. 

When law professors conduct what they consider debates about the Supreme Court, they bandy back and forth various phrases and linguistic formulations crafted by the diligent drones of the Court's PR shop – that pool of aides known in the jargon as "law clerks," the recent law school graduates who actually draft the opinions the justices sign (and who themselves frequently become law professors, completing the circle). 

If you picture the President personally signing off on every White House press release and passing it off as his (or, perhaps, her) own work, you'll have a pretty clear idea of how the Supreme Court works.  In the world of the press release, of course, every motive is pure, every goal noble, and every policy successful.  Press releases, including judicial opinions, endlessly invite us to accept the word as the deed. 

Princeton University Press was nice enough to send me a review copy of a book devoted to the painstaking perusal of Supreme Court press releases, and I feel guilty that I haven't devoted a post to it yet.  There's such a spirit of naive yearning in the book that I find myself drawn to its author, who as provost and Laurance S. Rockefeller Professor of Public Affairs at Princeton University would doubtless find my solicitude icky.

I know what you're asking: Who, exactly, was Laurance S. Rockefeller and why did he spell his first name like that?  Well, as a young man Laurance "attended Harvard Law School for two years until he came to the conclusion that he did not want to be a lawyer", which tells you everything you need to know about him: he didn't have to worry about paying off student loans.  After that his career was the usual round of venture capitalism, crop circles, philanthropy, the Roswell incident and alternative education.

The current occupant of the Ivy-entwined Rockefeller chair, Christopher Eisgruber, has written The Next Justice: Repairing the Supreme Court Appointments Process.  Before that he was a clerk for Justice Stevens, and I'm glad to say he's appropriately grateful to his fairy godfather - although calling him a "valued mentor" on the dedication page might strike some as providing a little too much information about the value Stevens added to Eisgruber's career.

I've written about Supreme Court clerks before (see post 204), but Karen Arnold did so with far greater detail in her  Lives Of Promise: What Becomes of High School Valedictorians.   Supreme Court clerks are the valedictorians among valedictorians, the highest-achieving of the high achievers, and I don't doubt that the personality characteristics Arnold found in her Midwest valedictorians are only amped up in the 36 (or so) smartest persons in the room who get to clerk at the Supreme Court.

What Arnold found, above all, was contentment with the status quo.  The people who graduate at the top of the class are those who spend the least mental time outside the box.  The closer your brain waves resemble the pattern of windows on the school facade, the higher your GPA will levitate over 4.0.

Or, as Arnold put it (sans the piquancy of sour grapes): "Over and over again, star students told us they rose to the top partly because they were intelligent, partly because they were schoolwise, and mostly because they worked hard, persisted, and drove to achieve."  "The top students readily identified themselves as 'school smart.'  Academic talent, to them, meant the ability to excel at academic learning and school tasks like note taking, memorization, and testing."

Eisgruber - the established face of the Establishment's premier establishment - has made school-smarts a career.  And a brilliant career it is, too.  Link after link in an amazing chain of achievements, all ending up as the university president's representative at budget meetings ...   Prestigious budget meetings, mind you.   But still.  I think the apple carts of central New Jersey are safe as long as Eisgruber is around.

(Incidentally, if you were the editor-in-chief of Princeton University Press, how would you feel about receiving an unsolicited manuscript from the "chief budgetary officer of the University"?  Mad at yourself for not having solicited it?)

Eisgruber's basic take on the Supreme Court is that its press releases tell you everything you need to know.  You can judge a judge by the polished productions he chooses to send to the publisher.   So his book is filled with quotations from the justices' opinions that are presented as true-to-life, pantingly-intimate, Sylvia Plath-like confessions of what the justices were thinking - in short, as the decisions themselves, rather than as public relations justifications for them. 

(The different meanings of "decision" contribute to fuzzy thinking in the legal academy, I think: the justices decide a case, then order their clerks to write a "report of [their] conclusion", and the latter is called ... the decision.)

If you start with the conviction that everything John Paul Stevens has ever done is good - no, make that Good - and devote your massive brain power to thinking about the Supreme Court while resisting any idea that challenges that core conviction, you would come up with policy prescriptions - well, that's a bit strong - policy vague suggestions similar to Eisgruber's.

I'll talk in more detail about the book in a later post.  But in the meantime I do recommend it without reservation as a fly-in-amber keepsake of well-spoken, well-intentioned conventional legal wisdom, circa 2007. 

The Supreme Court has long been in the habit of using the phrase "political branches" to describe the democratically-elected branches of government.  Westlaw counts 141 SCOTUS opinions making use of that phrase.   As a propaganda trick - excuse me, I mean talking point - it's comparable to the Court's use of the word "majoritarian" as a pejorative.  (See post 54 and post 265.) 

Not only is "political" frequently charged with a negative meaning in America ("playing politics," "politics as usual"), but calling the executive and legislative branches "political" implies the Court isn't  - it's just a government agency that decides issues of "public policy."  (1,805 SCOTAL mentions of that phrase.)  As to any superficial definitional similarity between "political" and "policy" - look!  An oyez!  Three of them!  Now, then, moving on to the next case, counsel ...

Our courts are even more political in a big-picture way, though.   Their policies - which never, ever work out the way they're intended, anyway - are in some respects the least of it.  I found a wonderful encapsulation of the meta-politics of the American judiciary in a most unlikely place: Simon Winder's The Man Who Saved Britain: A Personal Journal into the Disturbing World of James Bond.  It's a book about Britain in the post-War years, and particularly during the No Future 70s, when the author was growing up.  Amid much Tim Moore-style humor, James Bond is diagnosed as a nation's final instrument of post-Imperial denial.  And then we come to this:

What should we make of Bond's chief, the remarkable M?  He is a figure in the Bond mythology on a par with Blofeld and retains as astonishing potency.  If post-war Britain had expressed its debt to Bond in a landscape dotted with temples then M would undoubtedly get a substantial building to himself (this is an easy and enjoyable game with any number of temple layouts - at its best played with a more Asian sense of duality, forces of evil or violence also getting their place: it is easy to imagine a slightly disturbing folk cult growing up around Oddjob, say, and a lovely alcove for Pussy Galore).  In a sense, M is more of a religious force than Bond himself - a Jupiter to Bond's Mercury; Wotan to Bond's Loge.  The books in effect make him the father of the nation, the figure who is always awake and alert and who, through silent coup after silent coup (delivered via the figure of Bond), keeps us all safe.  He therefore incarnates in its perfect form the Conservative ideal: of patrician omnipotence over a silent, uncomprehending, safe, passive flock.

It was only as I read that last sentence that I realized who M reminds me of: the person the average American judge sees in the mirror.

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.

This is an almost-embarrasingly old-fashioned style of rhetoric (it dates from the 1920s), but it pretty much captures the obeisance paid to the Supreme Court by the American legal profession:

None of us desires or is able to dispute the judgments of the Supreme Court. The Court in the last analysis is always right, because the Court is the single constitutional instrument given to the American people for the solution of its basic problems. ...  One can be right only with the Court, and through the Court, for the Constitution has no other way of being in the right. The English have a saying: “My country – right or wrong.” With far more historical justification we may say of the Supreme Court, whether we agree with its decisions in individual cases or not, it remains our Court ...  And if the Court reaches a decision which one or another of us thinks unjust, he will say: just or unjust it is the Court, and the Constitution, and I shall support the consequences of the decision to the end.

Justice Jackson made the same point much more pithily, and with far greater wit (the 1924 speaker was reputed to be totally humorless): "We are not final because we are infallible, but we are infallible only because we are final. "

Of course, Trotsky wasn't really talking about our Supreme Court - I've retouched his speech about fealty to the Party.   The block quote links to an old Trotskyite essay with the title, "Trotsky on substitutionism," and substitutionism (of which the 1924 speech is cited as an example) is something very familiar to American lawyers.  The mode of thought signified by that unwieldy name is drummed into us in law school, and few lawyers question it thereafter. 

According to Yigael Gluckstein / Tony Cliff, 

 Quite early in his political activity, when only 24 years old, Trotsky prophesied that Lenin’s conception of party organisation must lead to a situation in which the party would “substitute itself for the working classes”, act as proxy in their name and on their behalf, regardless of what the workers thought or wanted.

Lenin’s conception would lead to a state of affairs in which “the organisation of the party substitutes itself for the party as a whole; then the Central Committee substitutes itself for the organisation; and finally the ‘dictator’ substitutes himself for the Central Committee”.

Stalin, of course, proved Trotsky right.

American lawyers do it differently: we substitute "majority opinions of the Supreme Court" for "the Constitution."  In practical terms, we accept the Court is the Constitution: the meaning of the Constitution really does change with each new opinion coming out of that mausoleum-shaped pile of marble - even when accepting the legitimacy of the new doctrine means accepting the illegitimacy of the Court's previous doctrine.   The Court is serially infallible.

Each of the state supreme courts has similarly, if less-convincingly, tried to meld its identity with that of its state's constitution.  And lawyers, like the surviving remnant of Stalin's Central Committee, are sufficiently intimidated that we act as though we really think Chiffon is butter.

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

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

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

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

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

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

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

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

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

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

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

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

A used-bookstore browse recently found reminders of our legal system on every shelf - except the one devoted to law books, most of which seemed to be describing life on distant planets. 

In the travel section I came across the pseudonymous Emma Larkin's wonderful Finding George Orwell in Burma, which demonstrates the truth in the Burmese joke that Orwell wrote a Burmese trilogy, including not just Burmese Days, which is actually set there, but Animal Farm and Nineteen Eighty-Four - the latter being the most naturalistic of the three. 

Along the way we meet a government spokesman talking about the regime's slaughter of protesters on 8-8-88: "'Truth is true only within a certain period of time,' he announced.  'What was truth once may no longer be truth after many months or years.'"

It's pretty creepy, but also pretty familiar to lawyers, since it's a way of looking at the world that all of us spent three years internalizing.  That's how we can adapt instantly to the news that the meaning of the Constitution has suddenly changed.   In 1992 the late Chief Justice told us,  "Over the past 21 years, ... the Court has overruled in whole or in part 34 of its previous constitutional decisions".  He meant that about every eight months another bedrock truth of American society ceases to be true.  The period of its truthfulness expires.  (See post 264.)  

Larkin's book also reminds us in an epigraph of the important point that "who controls the past controls the future: who controls the present controls the past."  Justices Stevens and Scalia, in particular, are assiduous about controlling the past.  (See post 201 and post 192 and post 81.)

And then, on the next shelf of the bookstore, here's a paperback (original price 60¢) of Eric Hoffer's The True Believer.  True believers are so commonly encountered in the law biz that I knew the phrase as a description of people I had to deal with before I knew it as a book title. 

The Internet is full of depressing statistics about lawyer depression and alcoholism (see post 188), and then here comes Hoffer telling us: "A rising mass movement attracts and holds a following not by its doctrine and promises but by the refuge it offers from the anxieties, barrenness and meaninglessness of an individual existence." 

Being a true believer is an antidote to the pointlessness of so much of a lawyer's work - the pettiness of squabbles over mounds of boring documents, the hopelessness of a weak case in front of a biased judge, and the cognitive dissonance caused by the inadequately-repressed awareness of the unbridgeable gap between the lawyer's (and judge's) self-image and the real-world political effect of judicial power.  (See post 265.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All too often we talk about the Supreme Court as if the words it uses described the things it does.  I say it's time to give credit where credit is due.  The earlier collection of the Supremes' greatest hits emphasized the recent past and ages gone by (see post 196)  but it scanted on what might be called the Court's middle period.  Like the Rolling Stones, the Supreme Court went through a long stretch of mediocrity in the 1970s, but there were some bright spots amid all the Goats Head Soups: 

The religious right.  Where would Falwell, Robertson and Dobson be without 1973's Roe v. Wade?  More to the point, where would our nation be today without them?  The religious right took credit for President Bush's reelection, and I think they were fully justified in doing so.  But the Supreme Court deserves full credit for the religious right's clout.  

The revival of the death penalty.  Here's the number of executions in the United States during the years leading up to 1972:

1961   42   
1962  47  
1963  21  
1964  15  
1965  7  
1966  1  
1967  2  
1968  0  
1969  0  
1970  0  
1971  0  

Notice a pattern developing?  Then in 1972, the Supreme Court ruled that the death penalty was unconstitutional, regardless of the pesky little detail that it is twice specifically authorized by the very same Constitution.  Four years later, when members of the Court clarified that they only meant it was unconstitutional as then administered, they couldn't avoid revealing by negative inference what sort of statute would meet their approval, igniting a political movement to enact just such statutes and put them to vigorous use.

The natural trend toward the death penalty's eradication, which was world-wide in the 1970s (France, for instance, abolished use of the guillotine only in 1981, under the rotund collaborationist Mitterand), was abruptly reversed in the U.S., as this graph shows so ... graphically.  Only recently, after 35 years, has the death penalty's slide into history been recommenced, as the Court's massively counter-productive intervention fades into political memory.

Longer sentences for druggies.  Judges reluctant to lock some pathetic crackhead away for a decade (take a look at table 5.3 for average federal drug sentences) will always be tempted to find an excuse for suppressing the evidence of the crackhead's offense.  And the more creativity judges demonstrate in devising ways to avoid enforcing the law as written, the more pressure on legislators to respond in the only ways open to them: by broadening definitions of offenses and, especially, by lengthening sentences.   The Court started this dynamic  spinning back in 1961 and it's only gained momentum since then.

Hundreds of thousands of dead, injured and severely traumatized people.  In 2005, America's violent crime rate was three times what it was in 1961, despite the extraordinary security precautions we now routinely take.  (See post 253.)  (My own state of New Mexico has seen its violent crime rate more than quintuple during that same period, an achievement even Louisiana, our usual rival in dubious social statistics, can't match.) 

In 1961, 8,740  people were murdered in America.   The declining lethality rate for gunshot and knife wounds (explained in post 34) means that roughly two-thirds of those victims, or about 5,768 of the total, would survive their injuries today.  Compare the difference (2,972) to our 2005 murder total of 16,692.

I don't think the judicial system is solely responsible for the increase in violence since 1961.  Far from it.  These things are always over-determined, as Freudians used to like to say (are there any Freudians left? if so I'm sure they're still saying it).  But I also think it would be silly to pretend that our judicial system isn't one of those determinants.  After all, if the criminal justice system has no effect on crime, what's its excuse for existing?

UPDATE: One doesn't wish to speak ill of those who have only hours to live, as the Rev. Falwell did when I wrote the above.  But while I didn't mean my words as a compliment, exactly, I'm pretty sure he would have agreed with the sentiment, for all that he would have drawn on a different set of oratorical conventions to articulate it.

The opening of Frost/Nixon on Broadway has given reviewers the opportunity to remind us of the most famous line from the famous interviews:

FROST:   So what in a sense, you're saying is that there are certain situations, ... where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON:  Well, when the president does it that means that it is not illegal.

FROST:  By definition.

NIXON:  Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

I ran across the quote in the New Yorker's gushing profile of the play's author (compiler? editor?), Peter Morgan, who also wrote or co-wrote The Queen and The Last King of Scotland, and ought to be steeling himself for the coming backlash.

New York's review praised Frank Langella - who will always be Dracula to me - for letting audiences in on the secret that Nixon had tremendous voter appeal: 

Because this is a rare depiction of a Nixon I can imagine people voting for—if not enough to elect him president twice—it’s shocking (and timely) when Langella declares, “I’m saying that when the president does it, that means it’s not illegal.”

The International Herald-Tribune also marveled at the charisma of an actor who can remind people why Nixon, over the course of his career, received more than 110 million votes for President:

Taller and far more commanding than one remembers Nixon himself, Langella forsakes all facile attempts at mimicry to take us far inside the wounded psyche of a leader adrift in a hubristic landscape of his own devising - a politician who can declare on air, "When the president does it, that means it's not illegal."

(Nixon, like all our recent Presidents except Carter, was above average height.)

The LA Times quotes the same line, and Time leads with it, and ABC News features it in a story about the upcoming movie.  Part of the compulsive quoting is disguised Bush-bashing, of course, but something about that line still has the power to shock, or at least to produce indignation.

But there's an easy way to take the sting out of the line.  Minimal editing is required to make it not only acceptable to modern political sensitivities but mundane.  Who would have difficulty accepting Nixon's pronouncement as self-evident truth if for "the President" we substituted "the Supreme Court"?

In 1992, Chief Justice Rehnquist observed: "Over the past 21 years, ... the Court has overruled in whole or in part 34 of its previous constitutional decisions."  As I've suggested before, this ought to imply that on 34 occasions over 21 years the Court admitted that it had violated the Constitution.  Worse than that, it had ordered all the lower courts of the nation to violate the Constitution, too.  (See post 254.)

But that, of course, is not how American judges and lawyers, or the general public, perceive it.  We've somehow learned to accept the idea that each of those 34 decisions was correct, right up until the moment it was suddenly incorrect.  Such instantaneous reversals of polarity hardly even disconcert us any more.  We've internalized the idea that if the Supreme Court does something, that means it's not illegal, even if it's exactly the opposite of what the Court did just a few years before.

The Supreme Court Historical Society sponsors an indoctrination site for schoolchildren, which includes Nixon's infamous line and offers this suggested discussion topic:

It has often been said that in the United States we have the rule of law, not men. What do you think this means? Does President Nixon's statement that "when the president does it [something illegal], that means that it is not illegal" support the idea that the United States has the rule of law, not men? Why or why not?

Here's my suggested discussion topic.  Was the Supreme Court Historical Society being hypocritical, or just weirdly oblivious, when it put that question on its website?  Which is more discreditable in an organization ostensibly devoted to the history of the Court?  Why?