JUDGING CRIMES

British Prime Minister Gordon Brown, speaking to the nation after the terrorist attack on the Glasgow airport, said: "The first duty of the government is the security and safety of all the British people."

American judges disagree.  A system of law that recognized the safety of the people as it highest priority would never conceal evidence of criminal violence from its jurors.  Rather, even as it recognized that preventing violence is better than responding to it, it would act on the principle that responding to violence is better than passively accepting it.

American judges have rejected that concept of government.  Instead, they hold - as a matter of the loftiest principle - that the security and safety of the people must never be permitted to become more than a secondary concern of the government.

The first duty of the government is to protect the constitutional rights of the accused.  That's why, for example, Illinois judges allowed James Ealy to go free after killing four people.  (See post 224.) 

The judges who set him free after he wiped out a whole family told him, in so many words, that there is no act so horrible as to be entirely unacceptable in American society.  Raping a small boy, strangling him and his mother, grandmother and aunt -  American judges are prepared to accept all that.   Protecting the boy and his female relatives from harm, or according them justice after their deaths - those weren't trivial concerns, but they were secondary.  The government's higher duty was to protect James Ealy from ... the government.

The first version of this post sounded angry and bitter, but the idea it was trying to get across is neither.  On the contrary, it's something that lawyers who practice criminal law simply take for granted.  And yet it's that odd thing, an unfamiliar truism.  The whole point of the judge-made exclusionary rules invented since 1961 is that some things are more important than enforcing laws intended to ensure the security and safety of the people.

Criminal law, in America, is always conditional: Thou shalt not kill, unless a judge believes the police wrongfully obtained evidence against you, in which case thou canst go ahead. 

However much the overly-elaborated Freudian edifice revealed about Freud himself, his technique of free association remains one of the most revealing windows into the human soul.  For example, if I were to say the phrase "3-year-old girl with gonorrhea," someone outside the legal system might think: "heartbreaking - family dysfunction - years of therapy - what happens when she grows up and has kids of her own?" 

A prosecutor might think: "emotionally-wrenching - system rigged against the victim."  A Wall Street Journal editorial page writer would think: "McMartin Preschool - hysteria - intrusive nanny state - out-of-control feminists - must recycle the same column again."

A justice of the Kansas Supreme Court, by contrast, would think: "eating cake."

See, that's what makes judges different from you and me.  Some people think in images, some people think in words, some people allow reflexive ideology to substitute for thinking, and a select minority think in terms of festive desserts.  Only the latter can ascend to the highest rung of the judicial hierarchy in Kansas.

(I've been told that within the concrete-bunker walls of Topeka's Judicial Center, medical malpractice is lime Jell-O with embedded fruit cocktail, but I haven't been able to confirm that.)

I'm not kidding about the cake.  Ridiculing, but not kidding.  The Kansas Supreme Court really and truly did issue an opinion last week in which the justices compared prosecuting the case of a three-year old with gonorrhea to the eating of cake.

Without a dissent.  All seven of the justices thought that was a perfectly reasonable thing to put in a published opinion.

Of course, in the inconceivable event that the justices were asked to explain themselves, they would say they were just using one of those clichés, like "the exception swallowing the rule," with which judges assure us that their mental slot cars remain on the track.  

The issue in front of the Kansas court was whether hearsay evidence should be admitted against the man who, the jury found beyond a reasonable doubt, was the source of the little girl's gonorrhea.  "Hearsay" means essentially everything you know.  How do you know your own name and address?  Somebody told you.  How did the justices of the Kansas Supreme Court find out they had been appointed?  Somebody told them.  How do you know I wrote those words?  You just read them.

In fact, judges theoretically decide all their cases on the basis of nothing but hearsay, which they call "authority" or "precedent."  When judges want to compliment a colleague they credit the colleague with writing  a "scholarly" opinion, which means an opinion stuffed like a French goose with hearsay in the form of quotations from other, previous cases.

Yet every American jurisdiction prohibits juries from hearing "hearsay."  Because the prohibition would be so silly if taken literally, lawyers and judges tacitly agree that most forms of hearsay (names and addresses, job titles, and so on) don't count, and of the few items remaining, most are admissible under one of literally dozens of exceptions.  The hearsay rule might be compared to a shower curtain made out of cheesecloth - it's a barrier, all right, but it doesn't keep your bathroom floor dry.

Kansas, for instance, recognizes 25 official exceptions to its hearsay rule, some of which have subparts and one of which includes "statements admissible on ground of necessity generally", which in technical legal parlance is called a "gaping loophole."

In the case of the three-year old with gonorrhea, the Kansas Supreme Court ruled that the jury should have been prohibited from hearing some hearsay.  (The precise legal issue doesn't matter, although the Kansas court managed to get it preposterously wrong.  The two things I would have thought no one could possibly believe about Justice Scalia were that he was unsure about his meaning or shy about expressing it.  But I would have been wrong - the Kansas justices evidently believe one or the other.)

All you need to know is that the court rejected an argument to the contrary made in a friend-of-the-court brief by the American Prosecutors Research Institute.  Here's the cake quote from last week's opinion:

We also observe that under the Institute's argument, the prosecution is allowed to have its cake and eat it too: The victim is too young to be competent to testify, as the district court found with 3-year-old F.J.I., but not too young to have her statement placed in evidence by the State with no attendant defense right to confront and cross-examine.

Exactly -- precisely -- the same point could be made about almost all hearsay ever admitted at any trial, civil or criminal.  That's the thing about hearsay: it's a statement made outside of court.  Except when it's used to attack or bolster the credibility of a witness, or jog the witness's memory, the opposing party has no opportunity to cross-examine the speaker, because by definition the speaker spoke the words while not sitting in that straight-backed chair next to the judge's desk.

The weird thing is that Kansas Justice Lawton Nuss, who wrote the opinion (and who sports a Wyatt Earp mustache, perhaps out of defensiveness about the German meaning of his name), apparently thought he was making some kind of crushing retort to the Institute, when in fact he was saying the most obvious thing that could possibly be said about hearsay evidence.

But that doesn't mean that Nuss's opinion is merely fatuous.  It's extraordinarily revealing, as if Justice Earp had revealed on YouTube that he was naked under his robe.  What he was saying was that the court's job isn't to seek justice, or enforce democratically-enacted laws, or protect small children from harm.  No, the court's job is to keep the playing field level between the parties in court.

This is the sense of "fairness" employed in too many American criminal courts, taking into consideration only what happens inside the courtroom and trying to make the lawsuit a fair fight.  The ideal is parity between the parties.  The Uncle Wiggily Game is fair in this sense - your kid can beat you even if you don't throw the game.   (See post 115.)

Nuss's Nusskuchen remark reveals that he sees the judiciary's role as making criminal trials resemble the Uncle Wiggily Game, keeping the odds of victory relatively even between the players - that is, between the lawyers.  It was unfair for the trial judge to permit the prosecution to introduce the child's statement (which I think is what Nuss was trying to convey by selecting that particular cliche from the court's supply closet) because it increased the likelihood that the defense lawyer would lose.  (Professor Barton helped to explain this mindset - see post 275.)

And, when you get right down to it, who can blame the justice for caring above all else about keeping his fellow lawyers from getting stuck with loser cases.  After all, what could be ickier than allowing yourself to identify with a raped child?

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.

In the late 1970s, while I was checking into the only type of motel I could afford (who keeps fleas in a bag, anyway?) in a town that the freeway forgot, I walked into the middle of a political discussion.  The night manager, an obese middle-aged woman, was saying: "If that SALT II treaty is ratified, I guarantee you that the Russians will be here within two years." 

When people say such superlatively preposterous things, the impulse is to wonder what could possibly be going through their heads.  Had the motel manager stayed up too many nights listening to Art Bell, or read a John Birch Society pamphlet while hypnotized?  Or were her foreign policy views a result of the same chemical imbalance responsible for her obesity?

When judges say equally preposterous things, it's usually all-too-obvious what was going on in their heads: a mental process that bears only the most superficial resemblance to thought.  Take Washington's Supreme Court Justice Richard B. Sanders, whom we've met before.  (See post 198.) 

In a recent concurring opinion, Sanders agreed with his colleagues on the Washington Supreme Court that the trial court erred by permitting a jury to hear certain evidence.  That evidence, while indisputably relevant to the jury's task of determining the defendant's guilt, should have been concealed from it.  But Sanders thought his colleagues were a little hasty in deciding the trial court's error was "harmless" – that is, that it probably had no effect on the jury's verdict.  He wrote:

[W]e "have no right to trench upon the province of the jury upon questions of fact."  Jensen v. Shaw Show Case Co., 76 Wash. 419, 421, 136 P. 698 (1913).  See Wash. Const. art. I, § 21 ("right of trial by jury shall remain inviolate"); U.S. CONST. amend. VI (guaranteeing trial by jury).

Modern constitutional criminal law consists of very little - so little as to approach nothing - except trenching upon the province the jury upon questions of fact.  The meaning of phrases such as "fourth amendment violation" and "Miranda violation" is that the jury was permitted to decide the facts of a case based on too much information.  It was permitted to get too close to the unvarnished truth.

The Fifth Amendment privilege against compelled confessions excludes evidence that everyone knows is quite likely to be false.  (See post 241.)  It also embodies a belief about the moral relation between the state and the individual that was, until quite recently in our history, almost universally-held in our society.  But the judge-made exclusionary rules invented since 1961 serve neither purpose.  Their goal is quite different: to prevent the conviction of people who committed acts that democratically-elected bodies have declared illegal.

Now, judges have given a variety of reasons why concealing relevant evidence from jurors is more important than permitting the people to decide how to regulate their own social relations.  For example, they say that preventing the conviction of guilty people teaches police officers good habits, the way an electric shock teaches lab rats not to press a certain bars in their cages.

For present purposes I'm perfectly willing to say that the judges are, in every instance, correct to prevent the people from using the courts as an instrument of self-government.  The point is that almost the only device available to judges to implement their alternative, superior vision of government is to trench upon the jury's role as factfinder.

They "suppress" evidence obtained by police, meaning they prevent jurors from learning of its existence in order to forestall the danger that they might find it helpful in their deliberations.  Or they rule that the evidence is inadmissible under the rules of evidence, for example because it's too powerful for defense counsel to explain away ("its probative value is substantially outweighed by the danger of unfair prejudice"). 

They order separate trials so jurors deciding one conspirator's guilt won't draw reasonable, logical inferences from information pertaining to his co-conspirator.  (If the inferences weren't reasonable and logical, jurors wouldn't draw them – unless we believe that jurors are unreasonable and illogical, which would make our jury system absurd.)

Indeed, when Justice Brennan wrote the opinion belatedly acknowledging the long-neglected provision in Constitution that requires separate trials (the Framers had accidentally left it on top of the car at a gas station, and it took nearly two centuries of searching to discover it in the weeds next to the road), he did do so on the basis that jurors, being non-lawyers , were too stupidly emotional to handle that much information. 

(Though he, like most judges and Don Corleone, preferred euphemism and circumlocution: "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.")

Criminal court judges limit the jury's power to decide the facts.  That's what they do.  Justice Sanders wasn't criticizing that.  On the contrary, in the case before him, he thought the trial court had made a mistake by permitting the jurors to learn as much as they did.

But even as he reaffirmed that the essence of the trial judge's role in criminal cases is to withhold evidence from juries, he wrote his "vacuously, smugly, and unconsciously foolish" concurring opinion saying that judges have no right to trench upon the jury's fact-finding role.

If Justice Sanders had thought for even a second about what he was saying, he would have recognized his self-contradiction.  But he didn't have to think.  He wrote legal prose instead.

Today the Supreme Court issued its twelfth in a series of opinions issued since 1986 that, individually and collectively, fail - not just fail, but thoroughly, comprehensively, epically fail - to clarify constitutional limits on criminal sentencing.  "Twelfth" isn't an exaggeration - it might, in fact, be an understatement. 

The justices have accomplished something truly special: they've taken an area of the law that no one even thought about and turned it into something no one can understand.  Least of all the justices themselves, who by this point appear utterly lost in the labyrinth of their own construction - though, since the analogy to Daedalus's creation implies intelligent craftsmanship, maybe it would be better to say they seem as helpless and befuddled as a homeowner who's forgotten the code to his own alarm system.

Here's Professor Berman puzzling over some of the many opacities of today's Rita opinion.  And here he is puzzling over others.   Here are the Akin Gumpsters over at SCOTUSblog, still hands-down the funniest law blog name.  Lyle Denniston even figures out a way to argue that the opinion with the two votes ought to be considered the "real" majority, rather than the one with the six votes.

(I think most of the confusion arises from the lawyer's automatic assumption that when the Supreme Court issues multiple opinions on a given subject, those opinions must be doctrinally consistent.  The phrase "double standard" does much to clear away the fog: state sentencing statutes are judged much more harshly than the federal sentencing system.)

Today's Rita opinion was the second this year to muddy the issue.  (See post 228 and post 230.)  By the Court's standards, this is a frenetic pace.  Justice Scalia - author of Blakely v. Washington, the 2004 opinion that first made me suspect he had suffered a stroke - was moved to something close to despair about what he and his colleagues had wrought, pointing out some of the many ways the Court has contradicted itself in just the last few years.

But it was left to Justice Souter to experience an epiphany of self-knowledge extremely rare in people as cosseted in institutionalized flattery as Supreme Court justices.  Needless to say, none of his colleagues joined his lonely dissent.  Souter wrote that "it seems fair to ask just what has been accomplished in real terms by all the judicial labor imposed by" the Court's flailing about. 

But even in his formulation of the question you can see Souter flinch.  "Judicial labor", indeed.  The burden of the justices' inability to figure out what they're trying to say doesn't fall primarily on judges, but on defendants sitting in jail, and their lawyers, and prosecutors, and state legislators wondering whether it's necessary to rewrite their state's sentencing statutes. 

At least we can give a confident answer to the last question:  The Court has done New Jersey, Washington and California so far.  That means 47 more to go.  Plus Puerto Rico and the District of Columbia.  And Guam.  If all goes according to schedule, we should be able to get a definite answer to you by 2080 at the latest, Senator.

As to what has been accomplished in real terms?  Elvis Costello sang about it on his first album.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court's second-most influential civil rights decision attempted to fix some of the damage the Court inflicted on the nation with its most influential civil rights decision.  (See post 219.)  The triumph of Brown v. Board of Education wasn't that it ended segregation - when Martin Luther King was thrown in jail nine years later, it wasn't out of nostalgia - but that the Court finally acknowledged, albeit without accepting blame for, the evil it had wrought with Plessy v. Ferguson, the separate-but-equal case in which it forbade American courts from enforcing the 14th amendment's equal protection clause. 

For most of the post-Civil War period, the justices saw their task - and occasionally even articulated it (see post 252) - as reconstructing the legal culture in which they had been trained, restoring the pre-War status quo - in short, surrendering the Union victory.  (See post 244.)  With Plessy, after 30 years of sapping, they finally achieved their goal.  As of 1896, the only remaining trace of the Civil War's constitutional revolution was that slavery could no longer be legally enforced under that name.

But it would be wrong to think that the Supreme Court alone was responsible for the pendulum swinging as far as it did in the first half of the 20th century.  The words of a politician of the era who is today almost universally venerated for his progressive idealism clues us in to the warped world in which the Court worked its black (or, rather, anti-Black) magic.

During the Civil War, this idealistic historian wrote in his celebrated 1902 history of America, Northerners "had not noted how quiet, how unexcited, how faithful and steady at their accustomed tasks, how devoted in the service of their masters the great mass of the negro people had remained amidst the very storm and upheaval of war."  Consequently, Northerners wholly misunderstood the phenomenon of "contrabands of war" - that is, self-liberated slaves fleeing to the Union Army camps: "to feed them was but to increase their numbers, as the news of bread without work spread through the country-sides."

This well-known idealist wrote of the freed people during Reconstruction,

Their ignorance and credulity made them easy dupes.  A petty favor, a slender stipend, a trifling perquisite, a bit of poor land, a piece of money satisfied or silence them.  It was enough, for the rest, to play upon their passions.  They were easily taught to hate the men who had once held them in slavery, and to follow blindly the political party which had brought on the war of emancipation.

They had to be "taught to hate the men who had once held them in slavery" because that's not the kind of thing they could have learned on their own during the years of slavery, since "they had the easy faith, the simplicity, the idle hopes, the inexperience of children.  Their masterless, homeless freedom made them the more pitiable, the more dependent, because under slavery they had been shielded ... [They] had never learned independence or the rough buffets of freedom."

So what inevitably occurred as a result of Northern meddling in Southern affairs?

The white men of the South were aroused by the mere instinct of self-preservation to rid themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant negroes ...  There was no place of open action or of constitutional agitation, under the terms of reconstruction, for the men who were the real leaders of the southern communities.  Its restrictions shut white men of the older order out from the suffrage even.  They could act only by private combination, by private means, as a force outside the government, hostile to it, proscribed by it, of whom oppositions and bitter resistance was expected, and expected with defiance.  ...

They began to do by secret concert and association what they could not do in avowed parties.  Almost by accident a way was found to succeed which led insensibly farther and farther afield into the ways of violence and outlawry.  In May, 1866, a little group of young men in the Tennessee village of Pulaski, finding time hang heavy on their hands after the excitements of the field, so lately abandoned, formed a secret club for the mere pleasure of association, for private amusements, - for anything that might promise to break the monotony of the too quiet place, as their wits might work upon the matter, and one of their number suggested that they call themselves Kuklos, the Circle.  Secrecy and mystery were at the heart of the pranks they planned ...

It threw the negroes into a very ecstasy of panic to see these sheeted "Ku Klux" move near them in the shrouded night; and their comic fear stimulated the lads who excited it to many an extravagant prank and mummery.

But, this famously idealistic politician acknowledged, over time the ex-slaves' "comic fear" rather over-stimulated the Ku Klux Klan:

The objects of the mysterious brotherhood grew serious fast enough.  It passed from jest to earnest.  Men took hold of it who rejoiced to find in it a new instrument of political power: men half outlawed, denied the suffrage, without hope of justice in the courts, who meant to take this means to make their wills felt.

But lest you think this celebrated academic, one-time president of an Ivy League college, made excuses for the KKK based solely on antipathy to Black Americans, here's what he had to say about the Chinese:

The law which excluded Chinese immigrants [enacted in 1882] had been passed at the urgent solicitation of the men of the Pacific coast.  Chinese laborers had poured in there, first by hundreds, then by thousands, finally by hundreds of thousands, until the labor situation of the whole coast had become one almost of revolution.  Caucasian laborers could not compete with the Chinese, could not live upon a handful of rice and work for a pittance, and found themselves being steadily crowded out from occupation after occupation by the thrifty, skilful Orientals, who, with their yellow skin and strange, debasing habits of life, seemed to them hardly fellow men at all, but evil spirits, rather.

Oh, but that's not all.  He didn't just hate, despise and fear African-Americans and Asians.  Describing the America of 1890, this person didn't hold back about southern and eastern Europeans, either:

Immigrants poured steadily in as before, with an alteration of stock which students of affairs marked with uneasiness.  Throughout the century men of the sturdy stocks of the north of Europe had made up the main strain of foreign blood which was every year added to the vital working force of the country, or else men of the Latin-Gallic stocks of France and northern Italy; but now there came multitudes of men of the lowest class from the south of Italy and men of the meaner sort out of Hungary and Poland, men out of the ranks where there was neither skill nor energy nor any initiative of quick intelligence; and they came in numbers which increased from year to year, as if the countries of the south of Europe were disburdening themselves of the more sordid and hapless elements of their population.

All of these quotes are from A History of the American People by Woodrow Wilson, our near-great President.  He was a contemptible man, and his fluke election and squeaker re-election were national tragedies.  It's no defense to say he was a man of his time, not only because he did so much to make those times as they were, ensuring that indifference or outright hostility to minorities would be a distinguishing characteristic of the Progressive program (see post 197), but because he was so much more odious than most people of his era.

In 1916, seeking reelection against a Supreme Court justice, he didn't hesitate to play the race card, telling voters in East St. Louis that Republicans were wickedly "'colonizing' imported black voters in a fraudulent attempt to pad the electoral rolls", according to David M. Kennedy.  By absolutely no coincidence, East St. Louis was the site of horrific anti-Black violence the following year, with the first of the great "race riots" - pogroms, really - of the 1917-1923 era.

That was only part of Wilson's legacy, of course.  Another part was his introduction of racial segregation into the federal civil service.  Soon after Wilson was inaugurated, Black employees of the federal government

were grouped together on jobs by race, partitioned off from whites in rooms where the two races had previously worked together, assigned the least desirable jobs, and forced to use separate toilets and lunch tables, inferior work spaces, and unsanitary makeshift dining rooms.  In some cases African Americans were downgraded or dismissed/terminated from their positions.

That's from Nicholas Patler's Jim Crow and the Wilson Administration: Protesting Federal Segregation in the Early Twentieth Century, which documents how committed Wilson remained to racial discrimination as federal policy even in the face of organized resistance.   Black journalist William Monroe Trotter, who had naively supported Wilson in the 1912 campaign, confronted Wilson two years later in the White House.  Wilson replied: "Segregation is not humiliating, but a benefit," adding to the uppity editor: "Your manner offends me."

The disaster of the reactionary Supreme Court, topped by the catastrophe of the Wilson presidency, produced some very bad times in America.  But it's when the pendulum is at its farthest point that its potential energy is greatest, and this ponderous pendulum began its return movement soon after Wilson finally died.

Because the Supreme Court had done so much to produce the truly dreadful conditions in so many areas of the country, it had the power to contribute to making them less dreadful by repudiating its own prior mistakes.  Finally, a century after the Civil War amendments were added to the Constitution, the Court was ready to start permitting the country's courts to enforce them.

And while I don't for a moment wish to criticize the Court for joining the 1870s, I just wish it had done so in the nineteenth century.

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.

Last week the New York Times ran several stories on New Jersey crime, including one headlined "Newark Battles Murder and its Accomplice, Silence."  It's already hidden from prying eyes in the archives, but it didn't say anything much, anyway.  (You can, however, still check out the cop-show atmospherics on the slide show and video.)  Could anyone really regard the following as news?

 With 40 shootings so far this year, investigators in the Fifth [Precinct, a 4-mile square area] have a practiced if unsatisfying routine.  A battalion of officers question potential witnesses, often turning up little more than blank expressions.  In recent years, there have been several chilling instances of witnesses being killed before they could testify, and the Essex County prosecutor has become increasingly wary of cases that lack physical evidence.

"No one wants to be accused of snitching," Sergeant Laterza said after even the victims at Seth Boyden [Terrace, a housing project] insisted they had seen nothing.  "These people have become so desensitized to the violence, it's almost become a way of life."

"Desensitized" seems a somewhat insensitive word to describe "a 14-year-old silently clutching his left thigh as he bled on the sofa of his aunt's disheveled apartment".  (Think what a difference it would make if only the aunt's apartment were heveled!)  As the article notes, most of Newark's murder victims are "young black men".  And where have we heard before about young black men being insensitive to pain?  Oh, yeah.  The South.  Before the Civil War.

 Well, I'm sure the quoted cop - to the extent he wasn't just saying what he expected the reporter wanted to hear - meant the bystanders were desensitized, not the victims.  But the bystanders who treat cops "like a band of pesky door-to-door salesmen, shrugging that they had witnessed nothing", are in fact being extremely sensitive to the reality that there are two governments in Newark: the one that occupies run-down government-owned buildings, and the one that actually makes things happen on the street.  

By coincidence (one supposes), just five days before the Times article appeared, New Jersey's intermediate appellate court issued its opinion in State v. Byrd.  The case involved a prisoner who had shared some advice with a fellow prisoner.  The fellow prisoner (Mr. Bush) had previously described to police how Mr. Byrd had killed someone.  Mr.  Byrd, upon learning this fact, expressed his concern for Mr. Bush's health, should Mr. Bush repeat his statement in court.  Mr. Bush took the advice in the spirit in which it was offered and refused to testify at Mr. Byrd's trial.

The Appellate Division announced that the issue before it was whether Mr. Byrd was entitled to have his manslaughter conviction reversed on the ground that he successfully intimidated Mr. Bush.  (That's not quite the wording the Appellate Division used - "The question presented is whether the trial court properly allowed introduction of an inculpatory out-of-court statement of a witness who refused to testify because defendants had threatened him with bodily harm if he testified against them." - but it amounts to the same thing.)

The New Jersey court ruled: If a thug successfully intimidates a witness against him, the thug is entitled to all the benefits naturally flowing from his initiative.  (Again, that's not quite the words the court used - "because N.J.R.E. 804(b) does not permit the State to introduce an inculpatory statement from a witness who refuses to testify because of threats to his or her safety made by the defendant, the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement" - but, again, it amounts to the same thing.) 

The court's reasoning is lame (lameness seems to be a habit with the Appellate Division - see post 254).  Its reason for deciding that it was wrong for the trial judge to allow the jury to hear evidence of Mr. Byrd's crime was ... that the issue was too important for it to decide.  I'm not kidding: "we are satisfied that given the significant and far-reaching implications of this proposed hearsay exception, such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with [quasi-legislative rulemaking procedures] rather than by judicial opinion."

The change would be "far-reaching" in the sense that it would affect all defendants who intimidate or kill witnesses against them, and according to the Times that's a lot of defendants, so maybe the court was onto something, after all.   Why, if witness intimidation ceased to be a get-out-of-jail-free card, the number of shootings in Newark's Fifth Precinct might decrease!  Seth Boyden Terrace might become less dangerous for 14-year-olds!  Far-reaching indeed.

But the court's lameness goes beyond the comical incoherence of deciding an issue on the basis that it lacked authority to decide it - because, as the court actually admitted, it possessed that authority.  The New Jersey Rules of Evidence give it power to modify the rules "to the end that the truth may be ascertained and proceedings justly determined".   The judges just didn't want to. 

And this is the same set of judges that, just last March, invented out of thin air a rule that criminal defendants waive their sixth amendment rights unless they jump through a certain hoop.

So we have a court that uses its power to modify rules of practice only when the modification is insignificant and short-reaching?  That must mean that the sixth amendment right to confront witnesses in court is less significant than the right to benefit from killing the witness outright. 

Halfway across the country, and just three days later, the Indiana Court of Appeals confronted a similar issue and said, simply: "Although the Indiana Rules of Evidence do not contain a [provision specifying that a defendant who kills a witness forfeits his right to object on hearsay grounds to admission of the dead witness's statement to police], we see no reason why the doctrine of forfeiture by wrongdoing may not be applied as a matter of common law." 

The difference between the New Jersey and Indiana courts is that one accepts threatening and killing witnesses as normal, and accordingly regards any attempt to discourage the practice as a "significant and far-reaching" alteration in the state's legal culture.   The other doesn't.

Webster's defines peroration as "the concluding part of a discourse and especially an oration" but that's a curiously flat way to put it.  A literary analysis of sermon structure gets to the real point: the peroration of a sermon is a "[r]ecapitulation and amplification of the argument designed to arouse emotion in the listener."

Much of the religious symbolism of the courtroom is obvious: the cavernous public room, the rows of uncomfortable wooden pews all facing one direction, the figure in the black robe facing the opposite direction, the large wooden structure centered on a raised platform to serve as a focal point, the stereotyped, kitschy artwork, the requirement that the audience stand up and sit down on cue, the bar beyond which only the initiated may venture, even the iconostasis from behind which the black-robed authority figure emerges (though, it must be admitted, judges are more likely to decorate in bordello scarlet than your average vestry committee).

But some of the ways in which the judiciary has assumed the role of state religion are less obvious, such as the high degree of faith necessary to believe that Supreme Court justices really receive regular revelations from the Framers.  (See post 233.)   And the perorations commonly tacked onto the ends of opinions. 

The Judge Arnold rhetoric quoted in post 274 was a peroration: it was the concluding section of his opinion and its elevated tone was intended to have an emotional impact on the reader, as it evidently did on Justice Brennan and the obituary-writers of the New York Times - not to mention the judges of the Second Circuit who recently quoted it twice.  Here's the last three sentences again:

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.

This, I think, is far more revealing than insightful.  The rhetorical strategy of euphemism is in full flower: the case involved a pedophile, who had previously been found not guilty of molesting or raping two little girls on the basis that he suffered from an "irresistible impulse" to rape them, and who murdered his most recent 10-year-old victim.  (Opinions in the case refer to him as a "former mental patient", but he was institutionalized by court order and not because it was medically indicated - his only psychological diagnoses were pedophilia and antisocial personality disorder, though you have to read the record to discover that fact.)

So what Arnold was really saying was: "In the long run, the prepubescent girls of America are both freer and safer if a person with the irresistible impulse to rape them, who has acted on that impulse multiple times and who killed at least one of his victims, is permitted to select new victims from among them."

That's not really fair, of course.  Arnold said "in the long run" and he counseled us not to confine our attention to the case at hand.  So what he really meant was: "The prepubescent girls of America are both freer and safer if lots of pedophiliac murderers, not just this one, are set loose among them."

No?  Then how about: "pedophiliac murderers are both freer and safer if the state is prohibited from punishing them."  That makes sense, at least.  But then, as Tonto might have asked, "What do you mean by 'we', Judge Arnold?"

It's not a coincidence that the case involved the murder of a 10-year-old, or that the linked Second Circuit case involved the murder of a crack-using prostitute.  The social status of the victim is critically important to the disposition of criminal cases.  Imagine that the victim in either case was a federal judge.  Do you think we'd hear the same rhetoric about how we'd all be freer and safer if we just accepted that judges get iced from time to time?

Arnold, you'll notice, didn't say "safe" or "free."  He used the comparative forms of those words.  His point was that the actions of the police officer posed a greater threat to our safety and freedom than the actions of the murderer.  The police officer in question asked the murderer to consider whether his victim's parents deserved to give their little girl a Christian burial.  So put on your blindfold, pick up the scales - no, wait, pick up the scales first, then put on the blindfold and tell me if you agree that asking that question poses a greater threat to our freedom and safety than kidnapping and killing one of us.

When Arnold's decision was reversed by the U.S. Supreme Court, Justice Byron White observed that "four Members of the Court, including myself, were of the view that [the detective in the case] had done nothing wrong at all, let alone anything unconstitutional."  So our freedom and safety is more threatened by a policeman doing something that 44% of the justices of the Supreme Court think entirely right and proper than by a pedophile kidnapping and killing a child.

(What does that say about 44% of the Supreme Court? - is that why Justice Brennan found the words so "stirring"?)

Assume for a moment (it's difficult, I know) that Arnold actually thought about the words he included in his peroration.  In that case, the real question raised by his opinion was: Who gets to decide what makes us freer and safer?  There's nothing in the opinion to indicate that Arnold understood that his opinion raised that question, but nonetheless he effectively answered it: The people don't get to decide.  Judges do.  Or, rather, the Founding Fathers do, communicating their desires through the earthly medium of judges.

And so finally we get to the real issues decided by Judge Arnold: Which is better for federal judges, allowing the people to make fundamental decisions about freedom and safety in their society, or making those decisions on their behalf?  Which is better for the legal profession, to allow a client to render his own case unwinnable or to prevent him from doing so? 

No wonder those judges on the Second Circuit like Arnold's peroration so much.