JUDGING CRIMES

Members of the Supreme Court - especially Justices Stevens and Scalia - are very big on appeals to history.  They're constantly talking about "the Framers" while being coy about who those people actually were.  (see post 79.)   And, in the manner of the lazy pop historian who tells us what some historical personage "must have been thinking" and "no doubt felt", the justices are quick to tell us that "the Framers were no more willing" to do one thing than another, and "the Framers certainly would not have condoned" something else. 

One distinguishing characteristic of lazy pop historians is their sentimentality, and the justices spread the schmalz thickly all over the past.  (See post 30 and post 192.)  One reason for this is that they draw their ideas from such an extremely narrow range of sources, principally those few appellate court opinions that have been transmitted down to us, and the words of those few cranky egotists who thought posterity deserved the benefit of their recorded thoughts.

For example, when Justice Thomas wanted some lessons from history about the way felons were sentenced when the Constitution was being drafted, he looked at appellate opinions from half a century later, explaining in a footnote that he (meaning his Federalist Society clerks) couldn't find any appellate opinions closer in time.  You might think that examining the press releases of appellate courts is a somewhat indirect way to look at what was happening in jails and county courthouses, but apparently it's the only way the clerks know.

But the main reason for the haze of sentimentality, the vaseline-on-the-lens soft focus of the justices' faux-history, is that they're really writing about themselves.  For both Scalia and Stevens, and for every other judge who pretends to draw lessons from history, the past is a place where everyone agrees with you.  

So it's good to be reminded from time to time that real people lived in the past, too.  They weren't all cartoons.  From a biography of that great English magistrate, Henry Fielding, comes this description of one of his predecessors in office:

[Sir Thomas] De Veil kept a private closet for the judicial examination of women and boasted his ability of being 'diligent and expeditious in doing a lady's business for her.'  He was known for his 'knack at coming at kept mistresses'.  When a female defendant caught his fancy, he took care that the case was settled before him on easy terms.  Then, 'he would enquire of the fair criminal, if she had not a back-door to her lodging, where a chair might stop without suspicion? at what season her friend was out of town or engaged? and when an amicable visit might be received without interception?'  He looks out from his portrait by De La Cour as a well-fleshed man with sharp eyes and an air of vigour.  He was routinely corrupt in taking money ...  In 1747 he issued a manual for magistrates called Observations on the Practice of a Justice of the Peace.  He advised his colleagues to take only the fees and what he called vaguely 'Perquisites' to which their office entitled them, and always to receive the money through the clerks as a matter of dignity.

In case you're wondering whether the perquisites of judicial office have changed much in the past 250 years, the answer, I'm afraid, can be found by following this link.  And this one.  These examples are aberrations, in more ways than one, but it would be foolish to imagine all such cases become public.

In 2005, the Utah Supreme Court - that hotbed of liberal activism - decided a case in which police officers, responding at 3:00 a.m. to a report of an extremely loud party, saw a fistfight in progress through the window.  As Justice Matthew Durrant, who looks like he's about to turn 30, framed it, the issue raised by the case was

whether police officers who personally witness an ongoing physical altercation in a residence may enter that residence in order to prevent bodily harm, or whether those officers must remain rooted onlookers, waiting passively for violence to escalate to a point at which severe harm is likely to occur.

From the way he phrased it, you can guess how he would have voted, but he was voted down.  The U.S. Supreme Court reversed, but Justice Stevens wrote separately to characterize the case as "an odd flyspeck" - as if the Supreme Court didn't "play it safe," in Lisa Kloppenberg's formulation, by ducking most of the significant cases presented to it.  Stevens' remark also reveals the justices' attitude toward the ordinary practice of judging cases.  (In case you need reminding, here's a definition of "flyspeck.")

But what's particularly interesting about Stevens' crotchety little concurrence is his remark that "the Utah Constitution provides greater protection to the privacy of the home than does the Fourth Amendment." 

(Stevens went on to predict that the Utah Supreme Court would duplicate its prior result on the basis of the Utah Constitution - even though the Utah court devoted five paragraphs of its prior opinion [paragraphs 10-14] to lamenting the fact that the issue was not presented to it under the state Constitution.  When you're a member of the United States Supreme Court, you have no obligation to be honest with your readers.)

Judges are extremely susceptible to fads, and one such fad making the rounds is the interpretation of state constitutions to provide "more protection" or "greater protection" than the federal Constitution.  Assigning new meanings to the state constitution might be compared to Yu-Gi-Oh, a mature but still strong franchise, while school funding formulas, a prior fad that has just about run its course, is more like Pokemon.  (This is not to denigrate Yu-Gi-Oh and Pokemon, which demand a great deal of intellectual effort - ask your kid to explain them.)

To take examples from the past few months, here are cases from states with notoriously liberal political climates talking about the  "greater protection" afforded by their state constitutions:  Texas, Wyoming, Montana, Utah, Ohio and Indiana.

But what does "protection" mean?  The dictionary definition of the noun form begs the question by utilizing the verb form, which in turn is defined as "To keep from being damaged, attacked, stolen, or injured; guard. See synonyms at defend."  So the cases must be talking about keeping something from being damaged, attacked, stolen, or injured.  By whom?  Who is the would-be damager, attacker, thief or injurer?

Two of the linked cases address nude dancing and unguarded remarks to police officers (another kind of nakedness, I suppose).  But usually when state courts talk about "more protection" they're talking about searches and seizures, that is, about cops barging into a judge's five-bedroom home in a nice quiet neighborhood.  (I know none of the cases actually involve a judge's home, and very few involve five-bedroom houses, but that's what the judges are thinking and writing about.)  So, it would seem, the state constitutions offer more protection against the cops, those damagers, attackers, thieves and injurers of the constitutional right to privacy. 

Except, of course, that the cases themselves offer no protection at all against the cops.

After all, the cops' intrusion is ancient history by the time the case gets in front of an appellate court.  Your complacent assumption that you could have a fistfight in front of your lighted window without interruption has long since been shattered.  Back in the 1880s in southwestern New Mexico, the Silver City Enterprise once jeered that the cavalry arrived at the scene of an Apache outrage, as usual, in time to bury the bodies.   State appellate courts protect their citizens from the cops in the same way.

There have been a surprising number of rationales for the exclusionary rule, from the U.S. Supremes' deterrence rationale to the euphemistically-phrased position of some state courts that getting away with crime is a remedy intended to compensate the victim of a constitutional tort, just as money does in civil rights cases.  (Example:  "the purpose of the exclusionary rule is not to deter or ensure judicial integrity, but to 'effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.'")

But whether the purpose is to deter cops from doing something bad in the future, or to make judges feel good about themselves ("judicial integrity"), or to take the place of money damages, or because the fourth amendment is a sub-section of the fifth (that's what the U.S. Supremes originally ruled), or just because the Court is composed of a bunch of social Darwinists who despise the thought of government regulation of business (as here and here) - whatever the rationale, it doesn't actually stop bad officers from doing bad things to you. 

In a classic Chas. Addams cartoon, a patent attorney is aiming a strange-looking device out of his window.  With a mildly irritated expression he glances over his shoulder at the bearded inventor: "Death-ray, fiddlesticks!  Why, it doesn't even slow them up."  I say: More protection, fiddlesticks!  Why, reinterpreting the state constitution has never stopped any testosterone-addled insecure bully with a badge from beating, raping, sexually tormenting, harassing or racially profiling anyone!  (It does, however, give bad cops another incentive to lie in court.)

No, if these appellate decisions offer us any protection at all from bad cops, it's in the long run.  After 45 years, I'd say the very long run.   But those decisions do offer a more immediate type of protection, as well.  In the immediate, concrete sense, they protect the accused from having their cases decided by fully-informed jurors.  So there's one type of "more protection": from reality.  The law school subject called "Evidence" consists almost exclusively of the study of types of relevant information kept from juries, and the non-textual exclusionary rules are simply ways of widening the gap between the real world and the courtroom version.

That, in turn, means that the jurors' decision is less likely to be accurate - which is just another way of saying that more guilty people will be found not guilty, or have charges dropped before trial.  I don't think anyone would dispute that that's the practical effect of "more protection."  So when you get right down to it, what all these state courts are promising is more protection from the law.

A law school classmate briefly worked for one of those thousand-lawyer mills that are regularly featured in the trade press.  When I made some comment about the number of hours such places require their associates to bill, he said, "The thing is, after a while they start believing they really worked all those hours!"

Now, admittedly, most of the big law firms, even those who have slimmed down their letterheads to the currently fashionable two-names-without-a-comma, don't go quite so far as James O. Mill, the retired Boston police officer who moved to New Hampshire and started a lucrative sideline running an investigations business.  According to the Massachusetts Supreme Judicial Court,

During 1993, 1994, and 1995, the defendant spent every business day at the Middlesex Superior Court, either in the court room assigned to clerk-magistrate Joseph Marshall or in Marshall's office. Beginning in April, 1994, Marshall handled most of the appointments of counsel for indigent defendants and motions for investigation funds. When the designated bar advocate was not in the courtroom, Marshall would deviate from the master list and appoint one attorney from among a group of four who were typically in the courtroom. Those four attorneys moved for investigation funds in every one of their cases and always retained the services of Mills Investigations. Marshall "rubber-stamped" his allowance of these motions off the record and in his back office where the defendant usually spent three hours a day socializing with Marshall.

For fiscal year 1993, the defendant billed CPCS [Committee for Public Counsel Services] for approximately $107,000 for investigative services. For fiscal year 1994, the defendant billed CPCS for approximately $197,000, representing 5,483 hours of investigative services. On forty-four occasions, the defendant submitted bills with more than twenty-four hours of work attributed to a single day. For fiscal year 1995, the defendant billed CPCS for approximately $359,000, representing 10,057 hours of investigative services. The defendant submitted 211 bills in which he claimed to have worked well over twenty-four hours in a single day (with some days as long as seventy-two hours).

There are 8,760 hours in a year (8,784 in a leap year), so billing 10,057 was pretty impressive.  As I say, I think that would be relatively uncommon among the associates of even the biggest law firm. 

I was reminded of my classmate's comment about the awesome power of self-delusion when I read about a mini-scandal that may have contributed to Conrad Burns' political downfall.  Four days before the election the Billings Gazette ran an AP story that began:  "Republican Sen. Conrad Burns received a $2,000 campaign donation from an attorney one day before recommending him for a federal judgeship five years ago."

The lawyer in question, Sam Haddon - that's "your honor" to you - is a former officer with both the Border Patrol and the old Narcotics Bureau (the DEA, several bureaucratic reorganizations ago).  This made him a natural for a job that consists, to a soul-crushing extent, of ordering the imprisonment of immigrants and addicts - the two categories of offenders that account for 65% of federal prisoners.  But that's not why he's a federal judge today, and every day for the rest of his life. 

Burns' spokesman tried to spin the suspicious timing by changing the subject: "To somehow insinuate that Sam Haddon wasn't qualified to earn his appointment on the merits is absurd."  No doubt Haddon was fully qualified.  But then, even in a state as unpopulated as Montana, with its bar of just 3,000 in-state members, there are doubtless several hundred other lawyers as qualified as Haddon. 

What made Haddon stand out from the crowd - what made his resume shine among the dross crossing a Senator's desk (whatever dross is, exactly, other than a handy cliche) - was his generosity.  As the Gazette reported, Haddon and his wife "frequently donated to Republican candidates and causes, giving $4,000 to Burns' 2000 campaign and thousands of dollars over the years to GOP committees and lawmakers."

The timing of that last $2,000 contribution was unfortunate, and perhaps typical of a soon-to-be ex-Senator with the gift of the gaffe (who else would publicly tell firefighters they did a "'piss-poor job' of battling a fire near Billings"?).  But the pattern of gifts was hardly out of the ordinary.  You don't get to be a federal judge unless you've made yourself useful to your state's senior senator of the President's party, and shovelfuls of money are always useful.  Federal judgeships are the last pure strain of the ol' Andy Jackson spoils system.

When the Supreme Court, a couple years ago, gave the green light to extortion by state judges, Justice O'Connor wrote separately to condemn the entire practice of electing judges.  She concluded: "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges."

The assumption behind those words is that there's an alternative to judges being conscious of what side their bread is buttered on.  My impression is that appointed judges in general, and federal judges in particular, believe in a fantasy called "merit selection."  In this fantasy, judges acquire power because they deserve it.  Not, for example, because they reliably donated large sums of cash to politicians of the party temporarily in power. 

Nor because they served as loyal soldiers of the state party for years before being on hand when President Reagan needed to redeem his campaign promise to appoint a woman to the Supreme Court.  I'm an admirer of Justice O'Connor.  She was far more grounded in reality than any of the current members of the Court.  Her opinions were consistently coherent - which you might think is damning by faint praise, until you try to read a Breyer or Souter opinion.  But the only influence merit had on her appointment to the Supreme Court was that it allowed her past the initial screening.

After a certain number of years of wielding virtually unlimited power, many federal judges seem to feel a need to justify to themselves why they were touched by the fairy godfather's wand.  The psychological process that makes them want to believe they were chosen on the basis of merit isn't difficult to understand.  Or, as my classmate would say, "The thing is, after a while they start believing they deserved it!"

In 1528, William Tyndale, translator of the Bible (most of the "King James" version is his single-handed work), examined scripture relating to acquiescence to authority and concluded: "Hereby seest thou that the king is in this world without law, and may at his lust do right or wrong and shall give accompts, but to God only." 

Is there anyone in modern American society who is in this world without law, who may at his lust do right or wrong and give accounts only to God?  No, I'm not talking about the President, whose accounts are rapidly coming due - something to do with the shift in balance caused by all those rats jumping ship.

Consider William J. Sullivan, whom we've met before.  (See post 178.)   He was the retiring Connecticut chief justice who delayed the release of an opinion because he thought it would help the political career of one of his buddies, a fellow state Supreme Court justice with ambitions to succeed Sullivan in the center chair.  Sullivan lied to the general assembly, although his lie was one of omission rather than commission.  Sullivan's admitted purpose was to prevent the general assembly from making a fully-informed decision in the fulfillment of its constitutional duties.   (See post 178.) 

Why did Sullivan want to hide the opinion from the general assembly?  Because the opinion was an outrageous encroachment on the authority of the general assembly.  Sullivan was exhibiting what prosecutors call consciousness of guilt - a concept neatly explained by this Connecticut jury instruction.

One of Sullivan's colleagues on the court was naive enough to believe that supreme court justices are bound by ethical rules.  He filed a complaint.  Last week the Connecticut Judicial Review Council did its best to rid that justice of his last lingering shreds of idealism.  Hilariously enough, it acquitted Sullivan of the charge of bringing the court into disrepute, despite many months of headlines detailing the extent to which personal relationships and empire-building dominate the administration of justice.  

In fact, one district judge on the council voted to acquit on all charges because she liked and admired the guy - and didn't see anything wrong about letting the world know the purely personal basis for her exercise of judgment.  "If I didn't like him, I wouldn't have any problem throwing the book at him," this judge didn't say, but might as well have.

But the Council did vote that Sullivan should be suspended for 15 days - even though Sullivan no longer holds any position from which he could be suspended.

But that's a veritable life in prison compared to the "punishment" meted out to Washington's Supreme Court Justice Richard Sanders.  An AP dispatch run in the Vancouver (Wash.) Columbian News last month gave the bare bones:

Supreme Court Justice Richard Sanders violated the Code of Judicial Conduct by touring Washington's sex predator center at McNeil Island while residents had appeals pending, a panel of judges sitting for the state Supreme Court ruled unanimously Thursday. ...

"Justice Sanders created a situation that clearly violated both the letter and the spirit of the canons and created serious concern for both counsel and fellow jurists about the appearance of partiality," the opinion read.

That doesn't quite give the full flavor of it.  The Washington Supreme Court was faced with a constitutional challenge to Washington's sexually violent predator act - a statute that permitted state authorities to keep certain sexually violent offenders locked up after the expiration of their sentences.  Under U.S. Supreme Court precedent, the key constitutional issue was whether the incarcerated men had difficulty - a lot of difficulty, but not insurmountable difficulty, you see? - controlling the impulse to sexually humiliate and violently abuse women.

At a time when the court was considering that challenge, and Justice Sanders had already circulated to his colleagues a draft opinion expressing his belief that such people should be set loose, two men confined as sexually violent predators wrote to him, asking him to come talk to them about their cases.  Both had cases pending before the Supreme Court.

No fewer than three of Sanders' colleagues on the bench told him ahead of time that it was a very bad idea to meet with the adjudicated predators, but he went anyway.  And - this is the part that makes you realize what a dim bulb Sanders is - he spent his time in the facility for sexually violent predators asking them "what they thought of volitional control."  Apparently, he actually thought he could discover some kind of psychological truth by asking a group of psychopaths to be frank with him.

After three years, Sanders was "admonished"  - which means, more or less, that he was neither disciplined nor let off.  But he wasn't repentant.   He said, "If I had thought any of this would have violated the rule, I wouldn't have done it."  On the other side of the country, William Sullivan said, "If I thought I was doing anything wrong, I wouldn't have done it."  Do you suppose they employ the same spin doctor?  Or do they really think that judicial ethics is a personal matter - if it feels good, it must be ethical?

So, to answer the question with which this post began, I don't think our state supreme courts justices are quite "in this world without law, who may at [their] lust do right or wrong and give accounts only to God."  But they're working on it.

I didn't realize until the day was nearly over that Monday the 13th was the 150th anniversary of Louis Brandeis's birth.  Here's a nice little article from the Raleigh News-Observer commemorating the day, and here's Brandeis's page on the Oyez website. 

Brandeis was a great justice in many respects, but his indifference to racial issues has long puzzled me.  I use the word "puzzled" because I vaguely hope there's some principled justification for his inaction.  When Christopher Bracey published an article entitled "Louis Brandeis and the Race Question," he began by practically apologizing for bringing up a topic that reflected badly on the Master. 

Brandeis, though associated with Boston, was actually a Southerner, and living through the Civil War and Reconstruction may have done some kind of permanent injury to him, like losing hearing in a certain frequency range.  More generally, the Progressives in general were largely indifferent to Black America.  Race, which had been the defining issue of the "liberals" (to use an anachronistic term) of Lincoln's day, and again became the defining issue of the liberals of the 1950s and 1960s, was a matter of indifference to the liberal-equivalents in the intervening years.

Brandeis also joined the infamous eugenics opinion by Oliver Wendell Holmes.   That might be put down to a lapse, but I wonder.  I was reminded of it when I read the News-Observer piece, which quoted this sentence from his pen: "Those who won our independence believed that the final end of the state was to make men free to develop their faculties".

That phrase lacks political resonance now.  But it had resonance to spare during Brandeis's youth.  In chapter XXII of his Social Statics (1851), Herbert Spencer wrote: "To secure for each man the fullest freedom to exercise his faculties, compatible with the like freedom of all others, we find to be the state's duty". 

In Lochner v. New York, Holmes famously wrote: "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."  By which he meant: The majority's opinion enacts it.  Spencer - who reasoned syllogistically, like a lawyer, but wrote with a clear and lively prose style - was the originator of the phrase "survival of the fittest."  He was an ardent evolutionist, and applied his understanding of natural selection to his study of society, following his logic to some pretty chilly extremes.  Writing in the immediate aftermath of the Irish potato famine, he had this to say about those who advocated providing relief to the starving:

Blind to the fact, that under the natural order of things society is constantly excreting its unhealthy, imbecile, slow, vacillating, faithless members, these unthinking, though well-meaning, men advocate an interference which not only stops the purifying process, but even increases the vitiation—absolutely encourages the multiplication of the reckless and incompetent by offering them an unfailing provision, and discourages the multiplication of the competent and provident by heightening the prospective difficulty of maintaining a family. And thus, in their eagerness to prevent the really salutary sufferings that surround us, these sigh-wise and groan-foolish people bequeath to posterity a continually increasing curse.

Spencer's position is more or less the opposite of that normally associated with Brandeis the great Progressive.  So it's a bit startling to discover Justice Brandeis, near the end of his glorious career, ascribing Spencer's philosophy to the Founding Fathers.  And it makes his one-time endorsement of eugenics especially creepy.

I've never quite figured out why lawyers are so prone to hero-worship, but they are.  Brandeis was a great lawyer, and a pioneer, and a distinguished justice, and he lived an interesting life in a very interesting time.  But he wasn't quite a saint.  Or, maybe, he was - and we need to keep in mind the opening line of George Orwell's essay on Gandhi: "Saints should always be judged guilty until they are proved innocent".

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

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

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

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

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

Newspaper coverage of the courts tends to be dismal (see post 183), and it's not always easy to tell whether the reporter has missed the point or the judge has gone off his rocker.  Consider this very distressing case from the lovely little western Pennsylvania town of Kittanning.  (More photos here and here -  a lot of web-savvy local boosters, apparently.)  You probably heard about this story when it occurred, although so many similar incidents have occurred that they all tend to run together:

Doctors performed an emergency delivery after a woman allegedly tried to take an expecting mother's baby by cutting her stomach open, state police in Armstrong County said.

The suspect, Peggy Jo Conner, 38, of Ford City, is charged with attempted homicide and aggravated assault, police said. ...

Police said Conner hit Oskin in the head with a baseball bat on Wednesday, then drove her to a dirt road off Route 1037 in a wooded area of Wayne Township and cut Oskin's abdomen with a razor.

Someone riding an all-terrain vehicle found Oskin and Conner on the dirt road at about 5 p.m. Wednesday and called for help, police said.

As could have been anticipated, the suspect's husband was convinced his wife was pregnant.  She apparently needed a baby to maintain the illusion.  As for the person on the ATV:

Adam Silvis, a 17-year-old student at Lenape Technical School, was riding his ATV near his Wayne Township home on Oct. 12, 2005, when he came across Peggy Jo Conner kneeling beside an unconscious and bleeding Oskin by the roadside.

Silvis quickly returned home, told his parents about the scene he encountered and came back minutes later with his father while his mother Wanda called 911. Both men stayed with Oskin and Conner until emergency personnel and police arrived.

The police arrived quickly enough to find Conner still at the scene with blood on her clothing.  The location was "a remote wooded location" in Wayne Township, an inland pocket of rural poverty in Erie County, an area of 2,365 people with an average household income of $21,034 (compared to a Pennsylvania median of $45,941).

Conner was arrested, and confessed. But what happened in the interval between arrest and confession was in doubt, as anyone experienced in this business would expect:

Defense attorney David DeFazio argued that Conner had been awake about 24 hours without food by then.

Conner has testified that troopers pounded on a table and cursed at her and that she didn't feel she was free to leave until she gave the final statement. "I was told if I wasn't guilty then I didn't need a lawyer," she said.

I assume the police told a different story at the suppression hearing, which was devoted to defense counsel's argument that "Conner did not knowingly waive her Miranda warnings before making statements to police and [that] her requests for counsel were allegedly ignored by police" - and, I would gather from the above, that the confession was involuntary, to boot. 

Armstrong County Judge Kenneth Velasek didn't rule and didn't rule, and finally defense counsel filed a mandamus petition in the Superior Court to force him off the dime.  (Mandamus just means an order mandating something - usually a superior court ordering an inferior court to take some required action.)  The Superior Court refused to intervene, but at a subsequent bail hearing Judge Velasek explained the delay:

Valasek said the delay in making the decision on Conner's motion has been due to issues in the case that required intensive research.

"The court is on the verge of releasing a 40- to 50-page opinion," the judge said. "It is taking a bit longer than it normally would."

Valasek said neither attorney addressed an issue he felt was important in the case, requiring extra research. The judge did not say what that issue was, and neither attorney said they knew what that issue is.

How the prosecutor's heart must have sunk on hearing that news!  Judges never take 40-50 pages to deny a motion to suppress.  But I bet the defense attorney's elation was tinged with apprehension, too.  It's rarely a good thing when a judge takes over the conduct of the litigation, playing the role of advocate before himself.  Defense counsel had figured out which was his strongest arguments, and now the judge was telling him, in so many words, that he had decided to rule in the defense's favor, but on a weak argument, one much less likely to stand up on appeal.  

If I were the defense attorney I would have been thinking: "You moron, just grant my motion!", while standing at attention and saying out loud, "Thank you, your honor."

Anyway, Judge Velasek finally released his ruling: "The court cannot hold that the troopers had probable cause to arrest the defendant at the scene," the judge wrote. "Simply because she was present with some blood on her clothes does not, by itself, constitute probable cause to effect a lawful arrest."

A remote wooded area.  Two women are alone.  One is unconscious, having been struck multiple times by a baseball bat, her abdomen sliced open, rapidly bleeding out.  The second woman is observed kneeling beside her.  The 17-year-old who found this odd couple left them briefly, then returned with his father and stayed with them until the troopers arrived.  The troopers hear the teen's story, see the first woman's injury, and observe blood on the second woman's clothing. 

Would a reasonable police officer think there was reason to believe the woman in the blood-stained clothing seen kneeling over the bleeding woman had something to do with the latter's bloody injury?  This was probable cause squared.  Cubed.  No wonder defense counsel didn't make any argument about illegal arrest in his motion to suppress.

Valasek said it was reasonable to assume that Conner was taken into custody when she was not permitted to the leave the scene in Wayne Township. Conner was handcuffed and placed in the back of a police cruiser at the scene, and told she could not leave until being interviewed.

So, in other words, the troopers were required to let Conner drive away in her car, the one that also contained "a bloodstained crowbar, a razor knife, rubber gloves and other medical supplies", which Conner only needed a few minutes in that water-logged area of the country to dispose of effectively. 

Unless some crucial facts were omitted from the newspaper stories - always a possibility - you have to worry a bit.  About Judge Velasek, I mean.  Would you like to lie down, Ken?  Can I bring you a glass of water?

Incidentally, I couldn't locate a photo of Kenneth, the son of the late Ludwig "Moon" and Mary (Goyda) Valasek, on the web, but I did find out some pretty detailed biographical information about him.  And I must add that anyone who can organize a "Latin singing Guardian Angel choir" while coaching Little League has his good points, too.

One of the fascinating things about popular culture is its ability to absorb the avant-garde.  The Jackson Pollock drip school of abstract impressionism - what Harold Rosenburg (or was it Clement Greenberg?) called action painting, apparently after the Pop-Art original  - went from the shock of the new to a comfortable style of office decor within a single generation.  (It also gave us a fun website.) 

It took even less time for the shock-the-bourgeois theater scene to be overtaken by Hollywood's teen-comedy factory.  You want Verfremdungseffekt?  Check out the Scary Movie franchise.

But what happens when the popular culture overtakes the avant garde, but doesn't commodify it?  When, instead, techniques of the avant garde are adopted for utilitarian reasons?

Consider Paul de Man, the Belgian Nazi.  He was an enthusiastic quisling who wrote essays for two Nazi newspapers during the occupation.  A little bit of what his collaboration meant in moral terms is conveyed by this link.  De Man was interested in power: "the current of history ... continues to flow without bothering about the reticence of a few individuals who persist in not understanding its power."  Fascists such as himself, he boasted, were "the precursors of a unanimous will."  Here's an illustration of what he meant by "unanimous will."

In a notorious essay entitled "The Jews in Contemporary Literature" (Le Soir, March 4, 1941), de Man wrote that "Western intellectuals" - a category that, by his definition, excluded Jewish Europeans - should be proud that they had "safeguard[ed] themselves from Jewish influence in a domain as culturally representative as literature ...  We could not have much hope for the future of our civilization if it had let itself be invaded, without resistance, by a foreign force."

De Man concluded the essay by saying, with comfortable complacence, that "a solution to the Jewish problem that would lead to the creation of a Jewish colony isolated from Europe would not have, for the literary life of the West, regrettable consequences.  It would lose, in all, some personalities of mediocre worth".

(These quotes are from David Lehman's great book, Signs of the Times: Deconstruction and the Fall of Paul de Man, which is hostile to de Man but, so far as I know, has never been accused of inaccuracy.)

De Man was a trivial Nazi, and his triviality allowed him to escape punishment after the war.  He slunk off to America and was soon talking rather vaguely about himself as one who had "come from the left and from the happy days of the Front populaire" - the anti-fascists.  He got a job teaching at Bard College, where he married one of his students without first divorcing his Belgian wife, only to get fired for lying, cheating and stealing, according to the department head who hired (and fired) him. 

So, naturally, he was hired at Yale.  At Yale he enacted the Furherprinzip by getting himself adored as the great oracle of a new intellectual discipline, deconstructionism.  After all, what better place for a trivial fascist satrap than the rigid hierarchy of an elite university? 

When I first became aware of deconstructionism, I figured it was just the pathetic twitchings of a discipline that had lost most of its sense of purpose.  Why, after all, should anyone be an English major?  Speaking as one, I can say: To read a lot of really great books while you still have time.  In something of the same vein, the novelist Paul Auster writes in the current Guardian that literature is "utterly and magnificently ... useless" (the ellipsis is his) - a piece that, perhaps by coincidence, appears side-by-side with a particularly vicious "Digested Read" parody of his most recent novel.

Reading was the only good reason I ever came up with for being an English major during my four years, and it's not one that goes very far toward justifying "English" as an academic discipline.  Deconstructionism, I figured, was a way of occupying all those tuition-paying, class-teaching graduate students with something that, from a distance, could be mistaken for scholarship.  Since no one actually read the papers the deconstructionists produced (look at this table of contents - which of the authors has achieved the purest alloy of pretension and tedium?), its emptiness could be kept a trade secret.

Deconstructionists like to depict themselves as intellectuals performing work of great philosophical subtlety, but their only observable achievement is to have secured the tenure of a number of people in a very insecure profession - no mean accomplishment, to be sure, but arguably less than a philosophical breakthrough. 

But after 15 years in the criminal justice system, I've gradually become convinced that there's more to deconstructionism.  Look at the following list of personality characteristics - how many did the minor Nazi / major Yale poohbah de Man possess?

sense of entitlement, unremorseful, apathetic to others, unconscionable, blameful of others, manipulative and conning, affectively cold, disparate understanding of behavior and socially acceptable behavior, disregardful of social obligations, nonconforming to social norms, irresponsible.

People with these characteristics also frequently exhibit superficial glibness - a smooth flow of words that, upon reflection, actually mean almost nothing.  That, I think, is a pretty good description of this list of de Man quotes.  What I'm saying is this: de Man's version of deconstructionism replicated the thought processes of the sociopath.

De Man himself said that "[a] deconstruction always has for its target to reveal the existence of hidden articulations and fragmentations within assumed monadic totalities."  His one-time acolyte Barbara Johnson, reputedly responsible for "re-readings of motherhood as a nearly untenable discursive position" (though I think, out of charity, we should give her the benefit of the doubt on that one), explains that "[a] deconstructive reading is an attempt to show how the conspicuously foregrounded statements in a text are systematically related to discordant signifying elements that the text has thrown into its shadows or margins."  (Highly athletic texts, those.) 

This is more than meaningless blather.  It's meaningful blather.  Jonathan Culler, an enthusiast who (rather oddly) retains the ability to write a coherent clause, tells us that "[t]o deconstruct a discourse is to show how it undermines the philosophy it asserts".  It "undermines the philosophy" by showing that the "discourse" or "text" really means something other than what the author intended. 

Meaning, or rather "meaning", is brought to the text by the reader rather than the author, which logically means that the "meaning" of the deconstructive reading is likewise the creative effort of the reader, and so on.  It doesn't take long before you're following the trajectory traced by Frank in 2001: A Space Odyssey.

In the deconstructivist universe, the reader - which is to say, the English professor - is the senior partner, and the text a screen upon which to project the professor's preoccupations.  That is, I think, actually a fair critique of much that has passed for criticism since "English" was first accepted as an academic discipline.  But attempting to implement a criticism, no matter how insightful, as a technique for positive analysis has its difficulties.

If the "meaning" of a text is brought to it by the reader, then that meaning is limited by the reader's imagination.  And how many people (not including those currently employed by an English department) believe that English professors, on average, have more lively imaginations than novelists?  That's why deconstructionist readings all sound the same.  The text changes, but the sort of things English professors get rewarded for saying remain the same.

It's easy to see that deconstructionism involves a big dose of envy by the failed writers who populate English departments - they can simply say they're more creative than novelists, without having to prove it. 

It also offers a way for English departments to sell their continued funding as an integral part of the university's scholarly mission.  The more obscure the theory, the more impervious to criticism, after all - and the first line of defense for deconstructionists is always to say that their discipline involves such profundities that anyone who criticizes it reveals his or her own intellectual shortcomings. "If you are stupid enough to judge [a Nazi like de Man on the basis of his Nazism]," wrote Andrzej Warminski, "you judge at your peril, for that judgment ... judges only you."  (The ellipsis is Lehman's - I can't find the original on the net.)

In Paul de Man's case, it's also easy to say that his devotion to deconstructionism was a way to evade responsibility for his Nazi past.  But I'm not sure that's true, because it assumes he possessed a conscience, and that he was bothered by it.  I haven't seen any evidence of either.  He suffered fear of exposure, of course, but it seems a bit much to conclude his entire career was a preemptive move against exposure.   I believe de Man's fundamental slipperiness and dishonesty were, in fact, genuine expressions of his personality, that is, the personality of a psychopath. 

If that seems too much, consider again what it meant that de Man, in the midst of massive deportations and executions of the Jews of his own country, advocated sending all Jews - not excluding his fellow literati - to a "colony isolated from Europe." If you opened up your paper's Sunday book review and found a calm, literate essay advocating the round-up and mass deportation of writers the reviewer considers mediocrities, what would you think about the reviewer?   Then consider that de Man almost certainly understood that "deportation" meant, at best, concentration camps, and consider again de Man's bigamy and his post-war history of lie after lie.  I don't think "psychopath" is too strong.

When de Man's Nazism was first publicized, his admirers actually - no joke - tried to "prove" that writing pro-Nazi articles for a Nazi newspapers during the Nazi occupation of one's homeland was a way to "subvert" the Nazi regime.

And by now the relevance of this post to the practices of contemporary judges should be becoming clear.   The following is, in my opinion, the premier feat of deconstructionism performed by a judge - and note, too, that it actually predates de Man's work of the 1970s.  (So which way did the influence run?)

(The one preliminary thing you need to know is that, as the Supreme Court has put it, "The word 'shall' is ordinarily 'The language of command'."  When it appears in a statute, it "creates an obligation impervious to judicial discretion".  Almost all statutes use either "shall" or "may.") 

My example of statutory (de)construction involves the following words used by Congress: "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".

In a brilliant deconstruction, the Supreme Court in 1963 proved that the word "shall" as used in that statute actually meant "may."   Its logic, or perhaps one should say its rhetorical strategy, was as follows: (1) the Court itself had originally formulated the legal doctrine addressed by the statute, and because  courts cannot define their own jurisdiction, the doctrine was not jurisdictional; (2) when Congress, which does have the power to define the courts' jurisdiction, enacted a statute codifying the doctrine, it must necessarily have intended to codify it in the original formulation adopted by the Supreme Court; (3) therefore, the real meaning of "shall" was "may."

What's particularly inspiring about this deconstruction is that no one -  but no one - would defend it straight out.  Certainly the Supreme Court itself, and the many thousands of federal court decisions relying on it, have never said "When Congress used 'shall', it meant 'may.'"  But the Court's brilliant 1963 deconstruction of the statute - a deconstruction that has survived congressional revision of the statute - proves that by bringing your own meaning to the reading of even the clearest text, you can make it mean whatever is most personally satisfying to you.

Ulysses isn't usually thought of as a legal thriller on a par with, say, Grisham, but it does unexpectedly contain a legal anecdote with the ring of observed courtroom reality.  After describing the unfortunate Denis Breen, "passing the door with his books under his oxter and the wife beside him and Corny Kelleher [the undertaker] with his wall eye looking in as they went past, talking to him like a father, trying to sell him a secondhand coffin", the anonymous narrator of the "Cyclops" episode picks up the story:

--How did that Canada swindle case go off? says Joe.

--Remanded, says J. J.

One of the bottlenosed fraternity it was went by the name of James Wought alias Saphiro alias Spark and Spiro, put an ad in the papers saying he'd give a passage to Canada for twenty bob. What? Do you see any green in the white of my eye? Course it was a bloody barney. What? Swindled them all, skivvies and badhachs from the county Meath, ay, and his own kidney too. J. J. was telling us there was an ancient Hebrew Zaretsky or something weeping in the witnessbox with his hat on him, swearing by the holy Moses he was stuck for two quid.

--Who tried the case? says Joe.

--Recorder, says Ned.

--Poor old sir Frederick, says Alf, you can cod him up to the two eyes.

--Heart as big as a lion, says Ned. Tell him a tale of woe about arrears of rent and a sick wife and a squad of kids and, faith, he'll dissolve in tears on the bench.

--Ay, says Alf. Reuben J was bloody lucky he didn't clap him in the dock the other day for suing poor little Gumley that's minding stones, for the corporation there near Butt bridge.

And he starts taking off the old recorder letting on to cry:

--A most scandalous thing! This poor hardworking man! How many children? Ten, did you say?

--Yes, your worship. And my wife has the typhoid.

--And the wife with typhoid fever! Scandalous! Leave the court immediately, sir. No, sir, I'll make no order for payment. How dare you,sir, come up before me and ask me to make an order! A poor hardworking industrious man! I dismiss the case.

The theme of the "Cyclops" episode is prejudice - the refusal to see -  as exemplified by truly awful character of "the Citizen."  The weeping judge's refusal to listen to the (Jewish) landlord fits right in.  But what strikes me as truest to life is the contempt with which the beneficiaries of the judge's prejudices regard their benefactor.  Prejudiced judges are hated by one side, but despised by the other.

(For definitions of some of the slang from the passage, check out this list.)

From the Chicago Daily Law Bulletin of a couple months ago comes the report of a speech by Justice John Paul Stevens, the first Supreme Court justice to smile in his official portrait (well, I haven't actually gone back to check to make sure that no one did it before, but I can say honestly that I've never noticed any earlier smile):

U.S. Supreme Court Justice John Paul Stevens in a speech here Thursday explained his views on the "original intent" theory of constitutional interpretation. ...

"My own view about original intent," Stevens continued, "is that it's just as relevant in constitutional cases as legislative history" in other cases.

"A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent," Stevens said.

It all sounds pretty mild, doesn't it?  But what Stevens was saying was that there is no excuse for Justice Scalia's approach.  Scalia has always taken the position that the random words of individual members of Congress are not a reliable guide to congressional intent, but that the random words of individual members of the generation of the Founders are a reliable guide to the Founders' intent.  (See post 120.) 

That position has never made any sense as a logical matter, and it's utterly incompatible with any concept of the Constitution as a democratic document.  After all, the people, acting through their elected representatives, ratified the words on the page, not the cerebrations of all the mini-mes in wigs that Scalia keeps picking out of the famous painting.  (Back row, left to right: Antonin Scalia, delegate from Delaware; Antonin Scalia, South Carolina; Antonin Scalia, Massachusetts; Antonin Scalia, Rhode Island; [partially obscured] Antonin Scalia, New Hampshire.)  (See post 79.)

It's a shame that Stevens' tone was so polite and studiously non-personal that his scathing comment on Scalia's intellectual dishonesty went right over the head of the reporter.

But lest anyone think that John Paul Stevens is a paragon of intellectual honesty, consider his concurrence in this spring's Georgia v. Randolph.  He began with the same general point he made in his Chicago speech:

The study of history for the purpose of ascertaining the original understanding of constitutional provisions is much like the study of legislative history for the purpose of ascertaining the intent of the lawmakers who enact statutes. In both situations the facts uncovered by the study are usually relevant but not necessarily dispositive.

So far, so - well, "good" is too strong a word.  Not bad, perhaps.  But Stevens then goes on to add:

At least since 1604 it has been settled that in the absence of exigent circumstances, a government agent has no right to enter a "house" or "castle" unless authorized to do so by a valid warrant. See Semayne's Case, 5 Co. Rep. 91a, 77 Eng. Rep. 194 (K.B.). Every occupant of the home has a right--protected by the common law for centuries and by the Fourth Amendment since 1791--to refuse entry.

This is simply false.  You can read Coke's report of Semayne's Case here - scroll down to page 11.  (I can't think of a particularly good reason for accepting Coke as a reliable reporter, except that we don't have an alternative, but that's by the bye.)  Anyway, Semayne's Case dealt with the power of the sheriff to enter a house to seize property to satisfy a private debt prior to trial. 

The reference to a man's house being his castle, under point 1, referred to the property-owner's right to resist a burglar.  Point 2 said that the sheriff had the right to break into the house after judgment had been entered.  And point 3 said that the sheriff had the right to break into the house to capture a felon, because "the liberty or privilege of the house doth not hold against the king."  The sheriff should knock and announce first, but not because the householder had any right to deny entrance.  Rather, knocking was required because "the Law without default in the owner abhorre destruction or breaking of any house". 

Emphasizing that the chief restriction on the sheriff's powers was the protection of property, the case goes on to state, in its very wide-ranging dicta, that if the sheriff "break the house when he may enter without breaking it, (that is, on request, or if he may open the door without breaking) he is a trespasser".  The tort of trespass, of course, is all about protecting property.

The actual holding of Semayne's Case is that, when executing pre-judgment process in a suit between private parties, the sheriff should ask to have the goods delivered before breaking down the door.  The court was at pains to emphasize that its decision did not apply "when the process toucheth the King", a distinction based on "the express difference ... between the Case of felony, which (as hath been said) concerneth the Commonwealth, and the suit of any other subject, which is for the particular interest of the party".

Compare this to what Justice Stevens wrote about the case. 

But while the misrepresentation is, itself, a powerful argument against the use of history in judicial opinions - use and misuse, history and faux-history, are indistinguishable in a system based on argument by authority - Stevens' intellectual dishonesty goes much deeper than that.

The whole idea that English peasants had a right to resist the forces of the crown during the century or two before 1776 is, to use the technical term preferred by historians, laughable.  For example, long after Coke and Semayne were in their graves, the Saltpetre Men had the perfect right - indeed, a patriotic duty - to enter your lands and buildings at their discretion.  (See post 35.) 

If that example is too ludicrous for your taste, consider for a moment the purpose of "priest holes."  Semayne's Case is careful to say that the "house of any one is not a Castle or privilege but for himself, and shall not extend to protect any person who flieth to his house" - such as, say, Catholic priests.  And the Scottish Highlanders, and the Catholic Irish - are we to believe they had a right to exclude officers of the Crown?  Such as, say, Cumberland's troops when they entered Inverness?

And if a man's home was a castle, why couldn't he keep King George from "quartering large bodies of armed troops among us"?  The third amendment should be sufficient riposte to anyone who seriously thinks English law circa 1776 permitted private castellation.

And surely you remember your Hornblower and Aubrey and Maturin?  The business about press gangs?  Great Britain of the late 18th century was a country that didn't hesitate to enslave its own citizens, and the citizens of other nations, for that matter, to work on warships.  Or, as Jefferson put it, King George "has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands."

You should recall the press gangs every time you hear sentimental drivel about English law.  Whatever nice words might sometimes have been used in the rarefied air of the King's Bench - not, you'll notice, the people's bench - those words had essentially nothing to do with the day-to-day life of the lower class, which is to say, of 80% of the population. 

It's in this light that Semayne's Case has the greatest relevance to modern life.  How many modern judges would, if they could be sure the words would never reach the press, echo this key bit of its reasoning, only substituting "cops" for "bailiffs"?

And although the Sheriff be an Officer of great authority, and trust, yet it appeareth by experience, that the Kings Writs are executed by Bailiffs, persons of little or no value[.]