JUDGING CRIMES

Caminito, Bonino and Noia all confessed to murdering Murray Hameroff.  They were tried together, and the jury found their confessions voluntary.  Noia chose not to appeal.  But after 14 years, Caminito got a federal judge to vacate his conviction, based on the judge's finding that the police acted "satanically" by questioning him "almost continuously" for 27 hours, leaving him alone in an unheated cell for 7 of them.  (See post 338.)

That last bit sounds like I'm being sarcastic, doesn't it?  Check it out: 222 F.2d at 699-701.  Caminito testified that he and Noia got together in the cells (this must have been during the "almost" rather than the "continuously" part) and agreed on a story to tell the cops.  (At 701, if you're following along.) 

After all, isn't that exactly what you would do if you were desperate for the torture to stop - sit down with your friend, talk it over, and make sure your confessions meshed in the details?  It's part of the ludicrousness of Jerome Frank that he flung around psychoanalytic lingo without first obtaining any concept of human psychology.

(His embrace of doctrinaire Freudianism, mid-50s incarnation, has this in common with his denunciation of the Brooklyn cops: both rest on the idea that other people are helpless puppets.)

Anyway, once Caminito got his conviction overturned, his buddy Bonino asked, "What about me?"  Four judges of the N.Y. Court of Appeals heaved a big sigh and said: "Since the United States Court of Appeals, Second Circuit, has held that the writ of habeas corpus must issue to his codefendant Caminito, because his confessions were inadmissible, the defendant Bonino should, in the interest of justice, receive a new trial with his (Bonino's) confessions excluded."  135 N.E.2d at 52.

Three judges, however, weren't so sure: "As to Caminito, the United States Court of Appeals drew factual conclusions widely different from those made by the jury and accepted by us as having reasonable basis in the record.  In reversing now as to Bonino, we are assuming, and acting on the assumption, that the Federal courts would similarly revise our interpretation of the record.  In our view, we have no right or duty to do so."  135 N.E.2d at 754 (Desmond, J., dissenting).

Okay, two down.  That left only Charles Noia, who confessed, was convicted, and never appealed.  A New York trial judge held: "That fraud and misrepresentation were employed to secure the alleged confession which is the only substantial evidence in this case has been authoritatively established in the United States Court's findings, in ruling on the Caminito writ of habeas corpus."  158 N.Y.S.2d at 686.

Of course, Jerome Frank said that Caminito's confession was involuntary, being the product of "brutalitarian" tactics (which isn't exactly the same as fraud - would you buy a used car from this man?).  He didn't talk about Noia's.  But the judge was right about the "authoritatively established" part.  It didn't matter whether the federal court was right, or even rational, because it had the authority, and that's the important thing in the legal system.

The state trial court judge thought it was intolerable to keep Noia in prison on the basis of "a manifestly unlawful conviction".  However, the Appellate Division pointed out that the trial judge's decision was, itself, manifestly unlawful: "No appeal was taken.  This being so, the court was without authority to grant the application."  163 N.Y.S.2d at 797.  The Court of Appeals affirmed, agreeing that as Noia had waived his right to appellate review, his only recourse was to ask the Governor for clemency.  148 N.E.2d at 142.

Naturally, Noia turned next to the federal courts.  The district judge dismissed his petition for habeas corpus (183 F.Supp. 222) but Jerome Frank's old court, the Second Circuit, reversed on a 2-1 vote.

When the majority ordered the writ of habeas corpus to be issued, ordering Noia's release from prison, it was acting on the authority of a statute that said:  "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State ..." 

How to interpret that?  It depends on what the meaning of "shall not" is.

The dissenting judge - Leonard P. Moore, who succeeded to Frank's seat upon the latter's death - thought it meant something along the lines of "shall not", but he was voted down.  He characterized the majority opinion this way:

The doctrine now enunciated by the majority is that whenever a group of appellate judges wish to depart from previously settled principles, they may find that 'extraordinary circumstances' exist and that such a finding entitled them to ignore on an ad hoc basis all otherwise applicable principles.  (300 F.2d at 366.)

That's not unstrong stuff. 

Anyway, in January, 1963, 22 years after Murray Hameroff (who?) breathed his last, Charles Noia's case was argued for two days in the United States Supreme Court.  Really.  That's what the opinion says: "Argued Jan. 7 and 8, 1963."

It was a simple case, raising just a single issue: if a state court affirms a state conviction on strictly state law grounds, can federal judges ignore the state court's ruling a re-decide the case on federal law grounds?   There was a catch, though: the question was to be answered by federal judges.

The result of all that palaver was, I think, one of the Supreme Court's finest - in the sense of "most characteristic" - moments.   Justice Brennan wrote the majority opinion explaining that when Congress said federal courts "shall not" issue the writ when the petitioner had not pursued his state remedies, it meant "may." 

Brennan reasoned that, because the requirement that a state prisoner first present his federal claims to state court was originally developed in the federal courts as a matter of professional courtesy, therefore when Congress enacted a statute that flatly prohibited federal courts to issue the writ in any other circumstance, it didn't prohibit federal courts from issuing the writ in other circumstances.

It sounds like I'm being sarcastic again, doesn't it?  372 U.S. at 419-20.  And reiterated at 372 U.S. at 434-35.

To support his conclusion that night was day, Brennan relied on the Reviser's Notes to 28 U.S.C. § 2254, which in turn relied on Ex parte Hawk, 321 U.S. 114 (1944).   A few pages later, however, when considering a different point (whether a prisoner should be required to seek certiorari review of his state conviction), Brennan wrote:

It is also true that Ex parte Hawk, 321 U.S. 114, a decision cited in the Reviser's Notes to 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here.  321 U.S., at 116-117.  But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.  

Unfortunately, Brennan neglected to explain to the rest of us how to distinguish between those situations in which such exaltation was appropriate and those in which it was not.

Brennan, who was a master of sentimental 19th-century prose style ("precious" was one of his favorite adjectives), prettied up his wine-into-water miracle with lots of flowery words, like these:  "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in the Anglo-American jurisprudence: 'the most celebrated writ in the English law.'" (That last is, to my mind, rather like describing Delaware as the fairest of the states east of Maryland.)  

After quoting fellow Supreme Court justices that "'there is no higher duty than to maintain it undisturbed'" (none?), Brennan reached the high-water mark of habeas hyperbole:

These are not extravagant expressions.  Behind them may be discerned the unceasing contest between personal liberty and government oppression.  It is not accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.

Note the only two choices: personal liberty or government oppression.  Which side are you on? 

Before you answer, recall that the Supreme Court is the government, and six of its members had just declared themselves free to disregard a statute enacted by Congress.  "Oppression," in Brennan's usage, was democracy when it interfered with the powers of government, specifically that of the courts.  The "personal liberty" he was talking about was that of federal judges. 

By the way, in case you'd forgotten about the "central role" habeas corpus has played in our national crises, Brennan helpfully dropped a footnote to remind us that after the Civil War was over, the Supreme Court ruled that during wartime civilians could only sometimes be subjected to martial law.  So next time we have a Civil War, we'll know.

Also, the Court once considered the case of men incarcerated for involvement in Aaron Burr's fantastic conspiracies of imperial dominion.  And during World War II the Court denied habeas petitions filed by condemned saboteurs who had been secretly landed by German submarines on American beaches. 

Brennan's final example was the Court's ruling, in the final months of World War II, that a Japanese-American woman who had succeeded in proving her loyalty could, after three years' incarceration, no longer be held indefinitely in a Utah camp (although Justice Douglas's opinion for the Court sidestepped the separate question whether she would be allowed to return to her California home).

Far from being "central" to the Second World War, the Civil War, and the run-up to the War of 1812, these legal disputes hardly even qualify as marginal.  It would be insulting the memory of Justice Brennan to suggest he believed a word of what he wrote.

Six years later he confirmed it was all eyewash.

Christopher L. Eisgruber (I don't mean to be rude, but with a last name like that, is the middle initial really necessary?) has written The Next Justice: Repairing the Supreme Court Appointments Process, a well-meaning, mildly interesting and thoroughly exasperating book. 

Eisgruber comes across as a likeable, intelligent guy aswarm with good intentions.  His basic theme is that the Supreme Court is perfect and everyone else needs to accommodate themselves to that.  The problem is, I'm not sure he understands that's his theme. 

I can't figure out who the book is written for.  Part of it is an introduction to (cue Sousa march) The Supreme Court, Paladin of Liberty, written for the semi-informed general reader.  But the concluding chapters are full of  (thoughtful, well-meaning) advice to the members of the Senate Judiciary Committee, a rather more specialized audience.  In the middle an entire chapter is composed largely of quotations from Supreme Court opinions.    Throughout, Eisgruber has smart, modest things to say. 

In short, there's an Atlantic Monthly article inside this book screaming to be let out.

Eisgruber gets real close to proposing a genuine solution to the contentious-yet-contentless confirmation hearing when he suggests that if a nominee refuses to answer certain carefully-calibrated questions, "skeptical senators would be well justified in voting against confirmation." 

This tiptoes right up to a genuine insight: confirmation hearings will become meaningful when the Senate, asserting its prerogatives as an institution, demands meaning.  If a nominee's refusal to answer means rejection, nominees will answer.  There's nothing mysterious about it.

But Eisgruber doesn't seem to realize what he's saying, because in the next chapter he tells us that "senators and the American public will have to give up the tantalizing but bogus concepts, such as 'judicial restraint,' that are now commonly invoked to evaluate nominees."  

Oh, I see.  Just reeducate everyone.  What is it that Bertolt Brecht, der Mann ohne (Redeeming) Eigenshaften, suggested to the East Germany government?  Why not just "dissolve the people / And elect another?" 

That's what's so exasperating about the book.  Eisgruber understands that political hardball will instantly end confirmation-hearing farces.  But he can't bring himself to recommend any course of action that genuinely challenges the status quo.   It's just not in his nature.  His talk about the American people giving up tantalizing concepts is just a word-processed way of drifting into irresolute silence.

It's as if Eisgruber - who, I'm sure, is the very soul of stability - has two personalities: the smart one who notices things and the conventional one who shushes the first.  And they took turns writing this manuscript.

An example: he says (several times) that Eisenhower was the last President who disregarded the ideology of his nominees, choosing justices based solely on perceived legal ability.  He also notes that two of Eisenhower's appointees, Brennan and Warren, were leaders of a Court that "rendered a series of ideologically charged decisions ensuring that no future presidential candidate [after Eisenhower] would be able to ignore the Court."   (He repeats that thought, too, in various phrasings.)

Elsewhere, Eisgruber notes that it's unlikely any future President will nominate someone from the opposing party (as both Eisenhower and Truman did), "given the Court's role and visibility in the post-Warren Court era". 

But he never ties together these various observations.   It's true that the Warren Court increased the Court's role and visibility, but that's just a polite way of saying it asserted vast new powers over the democratic branches of government, buying off Congress by giving it increased power over the states, and buying off state-court judges by giving them increased power over the other branches of their governments. 

Eisgruber notes the most obvious example of this process when he writes that for 20 years groups on both the right and the left "have cared above all else about what Supreme Court nominations will mean for the future of Roe and abortion policy in the United States."   After Roe v. Wade, there was no other way for abortion opponents to seek to change national policy.  By eliminating democratic change as an option, the justices practically insisted that all future vacancies on the Court would occasion intense political campaigns devoted to the issue.  The Court did that - it changed the nomination hearings into referenda on abortion.

The same is true of criminal law, the area of American life in which the Court has exerted the greatest influence in the past 50 years but a subject Eisgruber hardly mentions.  (Princeton men don't do criminal law, darling.   Their security guards take care of it.)

Starting during Eisenhower's second term, the Supreme Court took away a significant part of every local community's authority to order its own society.  The only way for local communities to regain the autonomy they enjoyed (and sometimes abused) in the early 1950s is to (1) ignore / work around the Supreme Court; or (2) attempt to influence the nomination and confirmation of Supreme Court justices.

Think of your favorite political cause.  The Supreme Court has left grubby fingerprints all over it, hasn't it?  You have to search hard for an unsmudged cause in modern America.  That's why I think confirmation hearings for Supreme Court nominees ought to be at least as contentious as congressional and presidential campaigns.  After all, in our post-democratic nation, members of Congress and Presidents don't have any power to make ultimate decisions about an ever-lengthening list of issues.

But although I think Eisgruber understands this, he's wholly committed to the Goodness and Rightness of all things Supreme Courtish.  The law operates like a religion (see post 332) and former Supreme Court clerks, who owe their careers to having been singled out by a justice, tend to be worshipful acolytes.  (See post 204.) 

So Eisgruber winds up saying, in consecutive paragraphs: "Unlike other federal courts, the Supreme Court has a discretionary docket.  The justices, in other words, have the power to choose which appeals they will hear.  ... The Supreme Court's docket ... require[s] the justices to make politically controversial judgments."  (My italics.) 

Freud would have made much of the juxtaposition of such  obviously contradictory sentences just a few lines apart.   (Page 28 if you're following along at home.)  It's necessary for Eisgruber's policy prescription ("try to make the best of it") to pretend that the justices have no choice but to nullify democratic choices.  But he knows that's just not true.  He's honest enough not to hide what he knows, but too successfully conventional to integrate it into his recommendations.  (See post 329.)

The late Meg Greenfield's last book, Washington, includes a taxonomy of Washingtonians that includes the Grown-Up Good Child - those handy, capable people who live to please powerful mentors.  Grown-Up Good Children prosper in  hierarchies - think of the former Supreme Court clerks that have gone on to become Supreme Court justices (Roberts, Stevens, Rehnquist, Breyer).  Greenfield put herself in that category, and I suspect Eisgruber belongs, too.   Grown-Up Good Children don't bite the hand that fed them.  

Then again, maybe it's simply the case that, after mature reflection, he approves of our reversion to a government of unaccountable elders.  After all, that's the way our ancestors did it in the Pleistocene, so evolutionary psychology supports it.  I mean, just look at street gangs, Mafia families and prestigious law firms.  You trying to tell me the similarities are coincidence?

Some of the corruptions of the War on Drugs are obvious, like dirty cops and (much harder to detect and therefore, I suspect, proportionately even more common) dirty judges.  (See post  53.) 

But another type of corruption is more pervasive and much harder to perceive.  If a judge suppresses drugs in one case, or dismisses charges against some life-wasting addict, what difference does it make?  Trying to arrest our way out of the drug problem is like Cúchulainn fighting the waves, or Herakles against the Hydra if Iolaus hadn't been so handy with the cautery.

The evident futility of so much of their working lives takes a toll on federal judges, I think.  Not just in an existential, meaning-of-it-all way (though maybe in that way, too), but in the loss of any sense of connection between events inside the courtroom and events outside it.

Forty-nine percent of federal prisoners are locked up for drugs, and another 19.3% because of their immigration status.  (Table 14 in this report.)  How can a federal judge mete out the ferocious federal sentences for those offenses day after day without beginning to suspect that none of it makes the slightest difference to the prevalence of either drug use or illegal immigration?

Add to that sense of futility the moral corruption that always accompanies too-easy gratification.  A business executive who can get his company to pay for whatever he wants soon discovers he wants more things.  By self-selection judges are people who place a higher value on the gratifications of power than on money, as our Chief Justice somewhat back-handedly reminded us at the New Year.  (See post 25.)

In drug cases federal judges can achieve the gratification of proving they're more powerful than Congress without paying the psychic price of responsibility for what happens next.  What happens next was going to happen, anyway.  "She should have died hereafter."   It just doesn't matter.

Except to the individual defendant, of course.  The real significance of victimless crimes, for judges, is that there's only one person in the courtroom.

This is, I think, the most corrosive form of corruption imposed on our society by the War on Drugs.  There are  powerful, internal psychological and emotional forces driving federal judges to think up ways to avoid imposing ridiculously-long sentences on people who are dangerous only to themselves and those unlucky enough to be related to them, or foolish enough to love them.  Judges want to resist confronting the reality that a significant part of their professional lives is devoted to cruel futility; they enjoy the Oklahoma-judge-like rush that the exercise of power gives them; and they feel sorry for the poor schmucks standing in front of the bench.

Against these powerful, personal currents is nothing but the impersonal imperative that they should subordinate themselves to the will of Congress.  Really, it's not a fair fight.

One of the strongest evidences of judicial pathology is the nearly-universal practice of federal judges of referring to the prosecution as "the government."  (See post 13.)  The obvious implication is that the judiciary is not part of "the government" but something else.  The less-obvious implication is that the judiciary isn't on the side of "the government." 

I think most judges like to see themselves as standing between the people and "the government."  It's a puerile fantasy, of course, but the unreality isn't the worst of it.  The fantasy is based on an unexamined assumption that the people aren't the government: that democracy doesn't exist, or isn't legitimate.   The most explicit statement of this mindset is found in the decision that held that the people can't control the influence of money in their elections:

In the free society ordained by our Constitution it is not the government, but the people - individually as citizens and candidates and collectively as associations and political committees - who must retain control over the quantity and range of debate on public issues in a political campaign.

What this means is that the government is not "the people ... collectively", but something alien, imposed upon them, from which they need to be protected.

With search and seizure law, judges promote themselves as the blue helmets in the War on Drugs.   They consider themselves morally neutral.

The problem is that while it's easy to pretend the Constitution says this-that-or-the-other, once you start the pretense you can't stop, unless you're the Supreme Court.  And the pose of moral neutrality that makes psychological sense for federal judges confronted with an endless conveyor belt of drug cases also requires a pose of moral neutrality as between rapists and rape victims, between murderers and murder victims.   (See post 259.)

It means, above all, taking no responsibility for the consequences of tolerating extreme violence. 

Last February we had the entertainingly sordid story of the Sharon Freebery, the local Delaware bigwig who took $2.3 million from a Du Pont heiress who, by coincidence, happened to have a major real estate project pending approval from Freebery's local government.   Freebery, in turn, passed along $600,000 to Delaware's federal judge Joseph J. Farnan, Jr., who introduced her to a loan officer who approved her for mortgages totaling over $1.1 million, despite the crimp the monthly payments might place on a government salary.  (See post 64.)

(Not to worry.  Freebery recently cleared a cool $1.3 million by reselling the properties.  See, she was good for it all along.)

Freebery was charged in two separate indictments.  Because of Farnan's involvement, they were assigned out of district - all the way to Philadelphia.  Federal Judge John Fullam dismissed one of the charges against Freebery and her co-defendant before trial.  The indictment, Fullam ruled, failed to allege a crime. The prosecution appealed, the appeal was argued on May 15, and the Third Circuit reversed 24 days later.   

Now, maybe those East Coast Circuits have a different conception of time than the cud-chewing judges of the laidback west, but where I come from, 24 days from argument to 26-page opinion is a remarkably short time.   Wilmington's News-Journal thought so, too:

Thursday's 26-page decision ... was unusually speedy and blunt, appearing to rebuke the lower court.  The 3rd Circuit can take eight months or more, after oral arguments, to make a ruling but in this case the decision came back in a little over three weeks.

It's almost as if Judge Fullam's decision wasn't just wrong but ridiculous.  Here's some of what the Third Circuit said about it:

[T]hat ruling is clearly contrary to the law of this circuit. ...  The indictment clearly alleges the required violation of a fiduciary duty and deceit ...  The indictment clearly informs the defendants of the conduct upon which the government bases its criminal charges, and it clearly sets forth the duties that the alleged conduct violated as well as the statutory origin of those duties.  We don't know what more the government should have done, given the nature of the alleged fraud.  The allegations are more than adequate ...  [T]he indictment clearly alleges that Freebery had a conflict of interest that should have been disclosed.

That's a lot of "clearlys" in an opinion.  And while it may not seem obvious to readers spared the unpleasantness of attending law school, that's pretty strong language for three judges to to use with respect to another. 

The case shows the four most important variables that go toward deciding cases in America's courts.  They're ranked here in order of priority, but it's important to note that not all of them will be applicable in every case, a point that will be returned to below.

1.  The identity of the judge.  Judge Fullam was also the judge who entered a judgment of not guilty after the jury returned a guilty verdict in one of the Abscam cases.  (Abscam, for those of you born yesterday, is described here.)  How many judges get the opportunity to take not just one but two high-profile public corruption cases from the lamentable proles who serve on federal juries?  Then, too, it's not altogether surprising that a high-status elderly man from Philadelphian (no, not the Bruce Springsteen Philadelphia, I mean the Katherine Hepburn one, from a world in which mainline is spelled as two capitalized words, neither of which has the least connection to needle exchanges) would have a deep regard for the Du Ponts.  The judge himself indicated that he believed (or at least was willing to accept) the testimony of Freebery's "benefactress", that the $2.3 million was just a friendly gesture, like sending a handwritten note on a tasteful card from the Museum of Art gift shop.

Various comments to this blog, including Jay Macke's comments to post 149, make the same point in different ways.  Some judges are biased, as Macke suggests.  Others, we know, are corrupt.  Others are so dumb they think they're more intelligent than everyone else, and take every opportunity to prove it (although "it" is never what they think they're proving).  Some of those who have practiced for a long time in a field with clearly-defined sides, like tort or criminal law ("there's no such thing as an ex-prosecutor," one of my colleagues says, "there's only defense lawyers"), keep fighting for their clients from their new position of power.  Others try so hard to avoid even the impression of bias that their rulings against their former colleagues become sadly/laughably predictable.  Some have ideological axes to grind, a few have political scores to settles, and it's a cold person who isn't influenced to some degree by feelings for individual lawyers involved in a case.

Now, in Judge Fullam's case ...  Well, I'll just pause right here to let you complete that sentence.  I'd sure hate to be sued for libel in a Delaware court.  The case would probably be assigned to Judge Farnan.

2.  The demographics of the defendant.  The more the defendant resembles the judge, the likelier it is that the judge will rule in the defendant's favor.  Freebery and her white, male co-defendant were powerful figures in the political establishment of the Delaware River.   Offenses that are regularly committed by people who share the demographics of your average judge tend to be treated leniently.  That's one of the reasons DWI is so hard to prosecute.

3.  The demographics of the victim.  The less the victim resembles the judge, the less seriously the offense is taken.  That's why rape cases were treated with such contempt by American judges for so long (see post 139), and why judicial "liberals" are hostile to the prosecution of violent crimes, the victims of which are overwhelmingly the disadvantaged.  (See post 148 and post 3.)  In the Freebery case, there's really no victim at all, merely an abstract mass of citizenry living in a different state than the judge.

4.  The merits of the case.

Now, many judges will, in many cases, jump right to # 4.  I don't mean to imply that any of the first three factors will always outweigh the fourth.  Far from it.  But the Third Circuit's flip of Judge Fullam's ruling provides some reason to believe that sometimes they do.

The Vermont campaign finance case has received relatively little attention.  That's a shame.  The Supreme Court has grievously injured American democracy on numerous occasions, and one of the really low blows came in the big favor the justices did for William F. Buckley's brother in 1975.  

In the wake of the Watergate scandal, when the public was eager to stop money from slopping around the political system like so much bilge water in a ship's hold, members of Congress enacted a comprehensive campaign finance reform act.  In the 178-footnote Buckley v. Valeo opinion, the Supreme Court struck down some but not all of reform act. 

The justices reasoned as follows:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.  This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. ...

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical, restraints on the quantity and diversity of political speech.

Because "virtually every means of communicating ideas in today's mass society requires the expenditure of money", therefore the expenditure of money is the communication of ideas.   In other words, because money talks, it's speech. 

Would you believe me if I were to say that the cord leading to your living room lamp is made out of visible light?  I can prove it.  Without the cord, the light bulb wouldn't glow.   Since virtually every means of producing artificial light in today's mass society requires the use of an electrical cord, therefore electrical cords are light.  QED.

In Buckley v. Valeo the  justices called Congress "naive" and then, in the very next paragraph, assured the American people that soft money could have no corrupting influence on congressional campaigns.  "We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify [the act's] ceiling on independent expenditures."  The staggering thing is that the justices may genuinely have believed they understood the influence of money on campaigns better than people who raised money for their own campaigns. 

The really revealing passage in Buckley v. Valeo was the following: 

In the free society ordained by our Constitution, it is not the government, but the people -- individually, as citizens and candidates, and collectively, as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign.

But what is the government in a democracy if not the people acting collectively?  By making a distinction between the government, on the one hand, and the people acting collectively, on the other hand, the justices denied the legitimacy of democratic government.

The justices were upholding this principle of anti-democracy when they ruled that the people of Vermont could not be permitted to control the political culture of their state.  And they uphold the same principle with every criminal case they decide in the name of the Constitution.  They reveal their mindset every time they refer to the prosecution as "the government," implying the judiciary is something else.  (See post 13 and post 39.)

The justices conceive of "the government" as something distinct from the people acting collectively.   And so, naturally, they conceive of police officers not as officers of the people but as instruments of that alien thing, "the government."  When you start from the premise that democracy exists in opposition to the demos, it makes perfect sense to treat the officers of a democratically-elected government as an occupying military force to be constrained by elaborate rules of engagement.  

One of the most enduring consequences of Buckley v. Valeo has been on the TV news.  This seems self-evident to me, though I don't recall seeing it pointed out elsewhere.  The decision gave television stations an enormous financial incentive to reduce news coverage of political campaigns.  It practically amounted to a government subsidy to curtail coverage.  After all, why give away free what they could sell for millions?  That,  in turn, helped produce the "money primary" that weeds out candidates long before the first vote is cast, and increased the effectiveness of negative advertising as the media disclaimed any responsibility to correct widely-disseminated smears, at least so long as they can be defended as arguably not-false.  (See post 65.)   It's now accepted that the responsibility for countering a smear rests exclusively with the smeared candidate, and he's a wimp if he lacks the funds to counter it effectively.  And so on, in ever-widening circles of consequences the justices were far too naive to have predicted, much less intended. 

The essence of the Vermont case is that the Supreme Court's monumentally ignorant invalidation of the post-Watergate campaign reforms must undoubtedly have been constitutionally correct, since otherwise the Court deformed American political culture for 31 years by mistake.  The actual experience of the past 31 years simply cannot be permitted to bring into question the Court's infallibility.

The Christian Science Monitor quotes Professor Jonathan Turley:

"I think the most dangerous aspect of Sam Alito is his deference to the government," says Jonathan Turley, a professor at George Washington University School of Law. "When it comes to government abuse and assertions of government power, Sam Alito is an empty robe."

A less-empty robe, presumably, would more aggressively assert government power to curb assertions of government power. 

USA Today ran an editorial decrying "Alito's troubling deference, both as a government lawyer and a judge, to the power of government institutions, employers and others in authority."  Put to one side the silliness of criticizing a lawyer for "deferring" to his client.  The point, apparently, is that a judge should use the power of his government institution to stand up to government institutions using their power.

The belief that power exercised by judges is somehow the opposite of power exercised by the government runs deep in the United States.   It's a classic idol of the tribe.  (See post 13.)  And it's a formidable barrier to clear thinking.

The Wall Street Journal (which doesn't allow even its own subscribers to access its website unless they pay an outrageous toll), yesterday ran a left-column story detailing Alito's conception of the "unitary executive branch", meaning the president's near-monarchical authority to disregard congressional enactments.  Alito's conservativism is of a distinctly Federalist nature -- and I'm not referring to the Federalist Society but to the real Federalists, as for instance Noah Webster as depicted in the preface to Sean Wilentz's The Rise of American Democracy: Jefferson to Lincoln.

We can certainly take for granted that anyone who's devoted the prime of his working life to the federal judicial bureaucracy is committed to advancing the interests of that bureaucracy.  (See post 2.)  So Alito should be viewed as someone strongly inclined to expand both executive and judicial authority.  He can do both - simultaneously - from a seat on the Supreme Court.  If the Senate votes in favor of his confirmation, it will be inviting him to gnaw away at congressional power from both ends. 

Dahlia Lithwick, whose every word is worth reading, wrote about Samuel Alito:

Robert Gordon has written in Slate, for instance, that in his survey of the criminal and Fourth Amendment cases Alito heard as an appeals court judge, he adopted the position most supportive of the government every time. Justice Antonin Scalia is a conservative who has crafted a healthy jurisprudence of doubt about limitless government powers. Alito, on the other hand, is a former prosecutor who has seemingly never met a search, seizure, warrant, or arrest he couldn't love.

(The Gordon article she's referring to can be found here.  It equates "libertarian" and "liberal," capturing just how far legal liberalism has diverged from political liberalism.  Where else does the Cato Institute equal People for the American Way?)

Look at Dahlia's choice of words.  "[H]e adopted the position most supportive of the government".  By "the government" she means the prosecution, and behind the prosecutors, the cops.  In the conventional way of looking at things, the opposite of "the government" is the individual citizen.  That's how it plays out in the defendant's life, and in the courtroom.

But there's a world beyond the courtroom that involves players not sitting at either of the tables arrayed on either side of the podium.  In practical terms, the core question in fourth amendment cases is: Who decides?   Who gets to decide whether a police action is reasonable?  The cops who were there, or the judge who wasn't?   The conflict is between the executive branch (prosecutors and cops) and the judicial branch.    So in concrete terms the opposite of "the government" is ... a different part of the same government. 

The law is unusually susceptible to Bacon's "idols of the theater", because conventional wisdom is enforced by judicial power.  A practicing lawyer trying to do right by her client has no alternative but to go along with notions she might recognize as false or even absurd.  The judge ruling on her case is, at least in theory, bound by the same notions, if they have been announced by a superior court.  (See post 10.)  I understand that.  I live with it every day.  But I've never understood why commentators standing outside the pyramid of judicial power are willing to go along.

A judge who suppresses evidence of criminal wrongdoing is exercising "limitless government power" just as much (or, making allowances for hyperbole, as little) as the cop who obtained the evidence.  The difference is that the cop was enforcing democratically-enacted laws.  The judge is forbidding their enforcement.

But there's another wrinkle, too.  Search warrants are orders issued by a judge.  An appellate court that orders the suppression of evidence seized pursuant to a warrant is saying that the police were wrong to follow the judge's order.  So in that case the core question is still, "Who gets to decide?" but the conflict is between the appellate court and the trial court.  One part of the judiciary is wrestling with another.  These rulings go both ways, of course (the prosecution can appeal pre-trial suppression orders, although the sclerotically bureaucratic federal Department of Justice does not always do so), so it is not automatic that the individual defendant benefits.  Power itself is inherently neutral.

Alito's rulings mean he was not intent on using the powers of government to impose his will on a democratic polity.   And what's illiberal about that?