CNN’s Chris Cillizza

Apropos our last post, it’s worth mentioning that he’s leading the charge. Heavy on rhetoric and hyperbole that pretends to be reporting, he is never, never worth the time to read. Except maybe this once, to demonstrate the point.

The “Baseless” Mantra

Justice Thomas thought the SCOTUS should hear the election cases they had declined to intervene in back when it mattered. So did Justices Alito and Gorsuch.

See here, beginning at page 25.

CNN takes its swipe a Justice Thomas here. USA Today has a screed here.

Same theme. Same word, even: “baseless”

Has any word ever been so overused in modern times? But then it appears they have to overuse it, because the allegations of election fraud are so obviously not baseless. Which is not to say that they are necessarily everything the claimants claim them to be. But they could be. And that question has been systematically evaded by the courts and shouted down by – well, what shall we call it at this point? – the internet-media establishment.

The reality is that any country claiming to be a “democracy” and depending upon elections for governmental legitimacy is vulnerable to fraudsters of various stripes seeking to “game the system to win, every single time”, which gaming will frequently, if not inevitably, devolve into fraud. Most of the time the fraud won’t be “material”, in the sense that it won’t affect the outcome. And Justice Thomas appears to acknowledge in the very dissent he is now criticized for that it appears this was the situation in the very case under review from which he was dissenting.

We’ll say this again: claims of election fraud – both state and federal – are fairly common. They are frequently litigated. On rare occasions the litigation can overturn the initial result. Indeed, the election rules themselves amount to an acknowledgment that election fraud will occur without the safeguards of those rules. There is nothing inherently implausible about alleging election fraud, it is not undermining democracy to make such allegations, and even 500 trillion repetitions of the word “baseless” will not change that.

We truly have arrived at a strange moment. Not because the 2020 election was exceedingly strange and likely involved widespread fraud, because that can be dealt with in the ordinary course. Rather, it is the ruthless suppression of dissent by our establishment, the cynical confidence that they can shout down and mantra-over reality and that the populace will acquiesce.

Ugh.

Rush Limbaugh, RIP

Sic transit gloria mundi.

He was quite the presence in the national conversation for many years. We became aware of him early on, in 1990, when he was just achieving celebrity status. He was the talk of the Hall of Justice in Rochester. Among the conservative people, that is.

Beyond that, we can relate a story about Rush based on personal knowledge. In 1990 we were very, very conservative ourselves, and had the poor sense to run for Congress. Unsuccessfully, of course. But we did bring about what seems in retrospect a very noteworthy event: a fundraising dinner that featured retired LTCOL Oliver North and none other than the Rushbo himself. At the same time. I believe the date was September 12th, 1990.

How did this happen? Well, we became big fans of Col. North during the Iran-Contra congressional hearings. They were quite the thing back in 1987 and we were in law school. When, three years later, we were back in Rochester we were invited to run for Congress and received the endorsements of the Republican, Conservative and Right-to-Life parties.

Col. North by that time was a big draw on the speaking circuit out of DC, so we called him to request his support. We were asked our positions on two issues: abortion and the Strategic Defense Initiative (SDI). Apparently pleased with our responses, Col. North agreed to lend his support and come to Rochester for a fundraising dinner and the game was on.

Subsequently, around the time the dinner was scheduled, LTCOL North was a guest on the Rush Limbaugh show, which we did have a chance to listen to often because we were in the car a lot in the afternoons with the radio on. Campaigning, doncha know. So we called down to WABC in New York (we think it was WABC) and talked to an assistant, Kit Carson, explaining that Rush might want to join the man he had just had on his show as a guest and take a puddle jumper-commuter flight up to Rochester.

Well, at first our suggestion was not well received. But we thought: “How cool would it be to get Oliver North and Rush Limbaugh at the same campaign event!” We were determined. We went ahead and purchased a plane ticket for Limbaugh for the date in question, called back to WABC/Kit Carson and said we had done so in case Mr. Limbaugh changed his mind. We were briefly put on hold, and then the famous voice came on and said: “John, this is Rush Limbaugh.”, as if that needed to be said under the circumstances.

In any event, Rush indicated he’d come up on his own dime, he had other things to do in smugtown (nickname for ROC).

He was very gracious, and a bit nervous about appearing before a large, live crowd, something we imagine he got over as time went on and he became more and more famous.

So that’s our own special little Rush Limbaugh memory. If you doubt us, the local newspaper gave the whole thing a brief mention in its story on the death of Rush Limbaugh.

Overall he was a very nice man. At least that was our experience of him. And we hope one day to see him again in that other fabled place we all long to be at the end of our own lives.

Requiem aeternam dona eis Domine, et lux perpetua luceat eis. Amen.

Political Necrostatements

We don’t believe it is the usual practice to have a Capitol Police officer’s body lie in state in the “rotunda”. But that’s what is happening with the body of Brian Sicknick.

As political theater it’s a two-fer: you get to curry favor with the police; and you get to dramatize the “insurrection” over which you’re conducting yet another impeachment-of-Trump-trial.

Meanwhile, there’s “not enough evidence” to charge the officer who shot one of the Capitol protesters – or “insurrectionists”, or what have you – at point blank range, killing her.

On the other hand, politicians currying favor with the Capitol police using dead bodies as currency is the usual practice, apparently.

It’s also disgusting.

Ugh.

Judicial Assessment

It’s interesting to us that someone – anyone – is assessing the federal judiciary from the standpoint of what kind of lawyers, exactly, become these judges?

Scott Greenfield is on it. As is Doug Berman over at Sentencing Law and Policy.

An assessment is probably just as necessary for state court judges. But never mind.

One thing neither Greenfield nor Berman discuss – and which is quite important as well, we think – is the make up of the federal appellate judiciary, exclusive of the trial level District Courts. The federal appellate judiciary is less dominated by trial prosecutors but more dominated by academics and “lawyers” who have been strictly appellate advocates, of course mostly for the government. What has happened – and this is a fairly recent development, “recent” meaning over the last few decades – is that the federal appellate judiciary is composed of judges who have never tried a case, even for the government, to say nothing of representing an individual human being as opposed to some institution.

We have likened this to naming a naval officer Chief of Naval Operations (highest ranking official in the Navy) who has never had sea duty. In the Navy this would be unthinkable. In the legal profession it’s the way it is.

The effects of this are profound. And subtle. And very real. Books should be written.

Or at least a law review article or two.

We are also of the opinion that the perspective most needed on the bench – independence – is practically non-existent on the federal bench. The proposal to appoint more public defenders doesn’t help here: they get a government paycheck. In fact, the study prompting this discussion in the first place refers to attorneys in “private practice” but what that really means is someone who worked for a large firm. The lawyers with more of a bent for independence will have most likely avoided any government or big firm employment.

Then again this may be an impossible goal. Someone who values independence that much almost certainly doesn’t even want to be a federal judge. Or a judge of any kind.

As someone we used to know used to say: what a dilemma.

Ugh.

Random Thoughts

Incredible though it may seem, sometimes we are too tame in our commentary, and it seems we should revisit this or that subject.

Like the horrendous state of our judiciary in general, and all too frequently the SCOTUS in particular as well.

The new Biden administration has floated the idea of SCOTUS “reform”. Whether this involves anything more than an updated court packing plan, well we don’t know. We are basically skeptical of anything calling itself reform. It’s like a crude propaganda device.

Speaking of crude propaganda devices, there’s this from the New York Times, via Yahoo News. Hyperbole should be reserved for propositions that are not debatable. When it is not so reserved it takes on the air of psychopathic ranting. Or heavy handed propaganda, to the extent the two can be distinguished.

Trump “attempted to subvert American democracy with a lie”. He was “enabled”, a psychobabble term (h/t Rush Limbaugh) by “conspiracy minded lawyers”. He waged an “extra legal campaign”, although it apparently involved presenting claims in courts.

“It is most likely that the court [SCOTUS] will deny this in one sentence,” North Dakota’s deputy solicitor general, James E. Nicolai, wrote in an email to his boss.

Sounds like a bold prediction indeed, until one is informed that the SCOTUS denies 99% or more of everything brought to it in one sentence, a little tidbit the propaganda piece New York Times article does not mention.

Supporters of Trump, we are told, have been “banned from Fox News for lies” or are “disgraced”.

Meanwhile we are reliably informed that Trump engaged in “daily tirades” and “subversive maneuvers”. This was all an “open attack on the democratic system”.

Sheesh. We don’t even like Trump around here, but we feel like jumping to his defense anyway, until we reflect and remember that no defense is rationally required for primitive screeds, even if they are printed in the New York Times.

We recall some revealing things from court opinions that we have had occasion to consider before:

At one point in 2014 we were discussing a SCOTUS case from 1998, Calderon v. Thompson, and its reference to the seemingly prohibitive and “profound societal costs” of federal habeas corpus. We noted at the time that there are equally profound societal costs to wrongful convictions. But we should have made the point more forcefully. A discussion of “societal costs” in criminal matters that does not mention wrongful convictions is “profound” in its own way: profoundly biased and unbalanced.

We had another example in 2016 where we brought up the 7th Circuit’s Judge Easterbrook for a – speaking of things “profound” – a profound self contradiction practically within the same page of his opinion in Buckley v. Fitzsimmons, Judge Easterbrook no sooner gets done admiring the efficiency and reliability of criminal trials to fix criminal liability than he bemoans the inefficiency and unreliability of civil trials to fix civil liability.

Do you think SCOTUS “reform” from the Biden administration will address this impoverished perspective problem? SJ seems to believe there may be a move afoot to “broaden the pool” from which federal judges are selected.

Maybe. We’ll see.

Incredibly Cynical

There are almost no circumstances we can imagine where a criminal defendant is better off standing trial before a judge rather than a jury.

Unless the criminal defendant is a cop. And indeed those cops who fall on the other side of the “v” in a criminal case – such a rare event in the first place, mind you – almost invariably opt for a bench trial, and are almost invariably acquitted when they do.

Here is a terribly sad story about an incident from four years ago. Oddly, we were writing about the same issue at about the same time.

It’s hard to blame the individual cop for doing what is in his own best interest, we suppose, although there are also times, and persons (a lot of whom are cops), who believe in admitting guilt and accepting punishment. Or say they do.

When it’s other people, it seems.

This is a situation in which unions can be harmful, we think. Their philosophy, such as it is, appears to be to side hard with their own no matter what. That’s the only way to even out the disparity in bargaining power, is the idea. But collective self interest as the sole guiding principle of an organization cannot help but degenerate into an especially rancid kind of cynicism.

Police unions, like all public employee unions, used to be outlawed for the simple – and excellent – reason that such unions are, by definition, combinations against the public interest. It would be nice to think that we could return to that state of affairs, but we think the toothpaste has been squeezed out of that tube a long time ago. It would be a very long trip back indeed.

We are pleased to note, however, that for once we can claim to have Scott Greenfield as an ally on this particular point. Interesting.

Political Prosecutions

The beltway certainly has their collective panties in a bunch over the “storming” of the Capitol building last week. Talk of “sedition” and “insurrection” abounds.

It used to be, before Trump, that charges of sedition and insurrection were discredited. We quote from the landmark first amendment case, New York Times v. Sullivan:

Although the Sedition Act was never tested in this Court,^[16] the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter “which no one now doubts.” Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: “I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.” Letter to Mrs. Adams, July 22, 1804, 4 Jefferson’s Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U. S. 616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250, 288-289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.

But as always, Trump changes everything. How soon we forget.

Back when the left was causing all the trouble in the 1960’s and 1970’s and saying all kinds of revolutionary things as they occasionally bombed and looted and murdered and kidnapped, no one ever brought up insurrection or sedition. No one important, anyway. Like the New York Times, for instance. They were important then, right? And even a little bit principled?

Seems so long ago.

Now sedition is all the rage, however.

It’s completely improper. The Capitol is, of course, federal territory. The federal government’s jurisdiction over it is plenary, unlike its jurisdiction when we’re talking about state territory. The feds can accordingly prosecute any crimes they’re of a mind to in connection with storming the Capitol, up through trespassing and rioting and stealing and mischief and mayhem and assault and murder. If any of those took place, or allegedly took place, the FBI can have at it. What does it legitimately add to any of that to bring up “sedition”?

Nothing. It’s making a political statement. It grounds a criminal prosecution in prevailing DC political opinion. That is an improper motivation for a criminal prosecution. Like vindictiveness. Or bad faith, when falsified evidence is deliberately used. Such improper motivations violate due process of law.

At least, that’s our opinion over here at LoS. And we have held that opinion for a long time – i.e., that an improper motivation for criminal charges violates the target’s right to due process of law – in other contexts, so unlike what seems like so many of our opposing interlocutors we are not being disingenuous, or getting caught up in the passions of the moment.

Indeed we have been working very hard in our own little bailiwick – or as hard as we ever work, at any rate – to remind our American courts of this important principle, which they seem to have forgotten in recent decades.

Ugh.

The Trumpster Gambit

Today we have this weird situation where the votes of the “electoral college” are counted – or not – in a joint session of Congress with Vice President Pence presiding and counting, or maybe not counting, maybe someone else does. We don’t know.

Apparently this has all been fertile territory for political conflict before, since Article II, section 1 of the constitution prescribes some fairly detailed procedures for this whole thing, and then that didn’t work out all that well early on (the 1800 presidential election!) and so we got the 12th amendment and if you want to have a read of that go ahead but it hardly seems like it could have improved things and so later the Congress passes the “Electoral Counting Act” and you can go ahead and have a read of that, too.

The point being, that like that last run-on sentence of a paragraph it all gets sort of impenetrable after the tinkering.

We have said many times that we are not big Trump supporters. But now that we’ve lived through four years of Trump detractors on steroids and brandishing virtual megaphones that they have not hesitated to employ virtually constantly, an unrelenting din poisoning not only political discourse in the United States but also any semblance of reason, we can maintain our detached neutrality no longer: Trump’s detractors are clearly worse than Trump.

Despite the word “baseless” being transformed into a mantra, there clearly is evidence of widespread vote tampering in the presidential election just past. There is nothing implausible about that, and indeed as we have pointed out before if it was implausible it would not have been necessary to have Article II, section 1 of the constitution, the 12th amendment and the Electoral Count Act. Those realities do not disappear under the withering and tedious repetition of a mantra.

And that, ladies and gentlemen, is what this is about: whether we can stamp our feet and mantra and megaphone and bully our way into a reality that is different from the actual reality. We cannot, and no one can. Reality just is.

Now, there are frequently conflicts in which this is a factor. More frequently in post modern world, where nothing is true and nothing is false and will is all that matters because Nietzsche. Again, we’ve been over that.

But people seem to be missing something here that makes this different. Because now we are throwing down the relativist gauntlet at the feet of the president of the United States, clothed in immense power.

There was a “phone call” over the weekend between the president and some officials in the State of Georgia, that have led to a new round of calls for impeachment and prosecution, but in order to beat that drum the nature and particulars of the now infamous phone call have to be grotesquely misrepresented. Not just misrepresented; grotesquely misrepresented. There was one, and only one, significant “revelation” from this phone call: despite two months of wrangling over the legitimacy of the vote in Georgia, the officials on the phone call had still not provided the relevant documents and evidence from Fulton County, where Atlanta is, to the president or his lawyers. This was admitted by the officials in the phone call.

There is one and only one, characterization that can be fairly applied to this: stonewalling, which is itself evidence of wrongdoing and cover up. It does not matter now how many times the Washington Post or the New York Times uses the word “baseless” and, far-fetched though it may seem, there comes a point where their refusal to truthfully report on the matter, coupled with the behavior they have engaged in since the beginning of the Trump presidency, actually puts the term “sedition” in play. About which we will say two things: first, like any law enforcement official the president can forego enforcement, and there are often good reasons for doing so; and second, if he does not forego enforcement we are going to experience one of those historical moments.

Historical moments are interesting and fun and exciting only in retrospect. They are no fun to live through.

Arizona v. Fulminante

You’ve got to hand it to the late Justice Rehnquist. He was quite an influence on the SCOTUS and led the pendulum swing back from indulging those no good dirty criminals in our justice system, a trend that supposedly occurred in the 1960’s under the “Warren Court”.

Which brings us to “harmless error”. It’s a sensible enough concept that some constitutional errors don’t affect the outcome – which in criminal cases is almost always a conviction – and thus are not a basis to disturb that outcome – you know, a conviction – on appeal.

At first blush, that is.

But if you do a little back filling, informed by actual experience, a rational person could easily conclude that the concept of “harmless error” is so dangerous to the sound administration of justice that it should be abolished, that all constitutional error is conclusively presumed to be harmful and that convictions obtained thereby should be automatically reversed. Why do we say this?

We have a colleague who pointed out to a judge in a criminal case at the trial level that his ruling was in violation of the constitution. The response of the prosecutor was that even if that was true, it was “harmless error”, whereupon the judge said yes, it’s just harmless error. Whereupon, after collecting his lower jaw from the floor owing to the sheer absurdity of what was being said, the colleague simply pointed out what should have been, and probably was, obvious:

JUST BECAUSE IT’S A “HARMLESS ERROR” DOESN’T MEAN YOU GET TO GO AHEAD AND COMMIT IT!!!

Good God, where to begin?

It’s ironic that 1967’s Chapman v. California, which established for the first time that some constitutional errors could be harmless, mentioned in a footnote one particular kind of constitutional error that would not be subject to what later came to be termed “harmless error analysis”: a biased judge.

Ugh. As our little anecdote indicates, all judges are biased against criminal defendants. You’re doing well if the bias isn’t utterly hopeless of mitigation.

But we digress.

So in 1991’s Arizona v. Fulminante Justice Rehnquist manages to convince a majority – a bare majority – of the SCOTUS to hold that the admission into evidence of a coerced confession, while of course a constitution level violation, could be harmless. Justice White, our hero in this and other matters, points out in dissent on this point that SCOTUS had already ruled the opposite in Payne v. Arkansas, which might be technically untrue since Payne preceded Chapman by almost a decade, but really.

Defects in reasoning are tiresome, except when they occur in the SCOTUS, whereupon defects in reasoning can generate a lot of excitement down the food chain, what with people getting sent off to prison or executed or, you know, tortured or that kind of thing.

So how do we determine which constitutional errors can be harmless and which, if any, can’t be (We conclude from Justice Rehnquist’s many writings that the latter would be a null set if he had his druthers, of course.) Since he was a bit hemmed in by that pesky little footnote in Chapman, Justice Rehnquist arrives at the notion that “structural” constitutional defects cannot be harmless, whereas “trial error” type defects can be.

Our hero Justice White is not impressed by this distinction and is unusually pointed in response:

The majority attempts to distinguish the use of a coerced confession from the other two errors listed in Chapman first by distorting the decision in Payne, and then by drawing a meaningless dichotomy between “trial errors” and “structural defects” in the trial process. 

Who has been vindicated in this seemingly esoteric but actually very consequential disagreement? Justice Rehnquist or Justice White? One way to determine that is, we submit, to ask and answer this question: in the nearly 30 years since Arizona v. Fulminante was decided, exactly how many constitutional errors have been found to be “structural” and therefore not susceptible of “harmless error” abuse analysis?

Regular readers (all three of them!) will intuit the answer: zero.

Justice White has been yet again vindicated. “Structural” is lipstick on the due process pig that “harmless error” analysis was doomed to become.

Rationalizing The Status Quo

In political science world, that is the most important job the courts have: to signal to the rabble that despite their own travails, all is well. This is thought to foster social stability. Social stability is the most important political value.

The truth, of course, is the opposite, as it so often is when the axioms of political science are analyzed. The courts are there to scrutinize the status quo, not to rationalize it.

In disordered poli-sci world, accordingly, the rabble are made to lose in court, time after time, but are given the impression that there is some neutral reason for them losing when there isn’t. The reason they lose in disordered poli-sci world is that they are the rabble and the rabble will always lose because otherwise the status quo is seen to be disturbed and the status quo must be preserved because that is social stability. Whereas the reality is that neutral rules should be followed whereby the rabble will lose only when they should lose and otherwise they will win, and because this is in accordance with the truth and with justice social stability will actually result as a by-product, as opposed to the phony social stability of poli-sci world which is always in danger of unraveling.

Sometimes the SCOTUS is bewilderingly poli-sci-ish. Today we wonder how, with the few cases it takes up during its terms, one of them winds up being this one. Goldman Sachs thinks it is important, so it must be? Is that the criterion?

This is in fact an important case, though not for the reasons Goldman Sachs says, nor the reasons legal punditry provides. It’s important precisely because, and only because, the SCOTUS took it up. It’s revealing about the SCOTUS and our other courts as well.

What is the issue the SCOTUS felt so strongly that it had to decide? Whether shareholders of publicly traded companies can bring what is called a “dervative” class action against the companies for lying to them when they can’t show that the lies affected the share price? Goldman Sachs thinks that without such a showing, the “class” should never be “certified”, a prerequisite to the “class action” moving forward to further adjudication.

So let’s get this straight. We already have the abusive, kick-the-rabble-out-of-court summary judgment rules that have been around since the 1980’s and the Celotex “trilogy”. But since Celotex apparently didn’t go far enough and allowed too much leeway to the rabble to to advance their claims in federal courts we piled on with 2009’s Iqbal and Twombly (Jones Day declares them a “welcome” development!), justifying even earlier dismissals of rabble initiated litigation – at the pleading stage, essentially overturning decades of law holding that a pleading should be a “short and plain statement” showing a right to relief.

You should see complaints in federal courts these days. They routinely run to 50 pages or more. And of course because it is the sentiment behind Iqbal and Twombly rather than the details which govern outcomes, even these lengthy complaints are most often dismissed early on.

And now, apparently even Iqbal and Twombly – piled on top of Celotex – are not enough. The rabble might combine forces and press a “class action” that seems to give their piddling little gripes some weight because there are so many of them, when really that’s the whole problem with the rabble – that there are so many of them. And so to make sure their class action complaints have merit, because unlike the government or institutional litigants like Goldman Sachs the rabble’s complaints are generally meritless, we’ve provided another hurdle, that being the “class certification” process, and that provides another opportunity to kick the rabble out of court while seeming to have a rule that’s based on something other than contempt for the rabble.

Rationalizing the status quo, in other words.

You have to admire the audacity: we lied, but they can’t show that our lies actually hurt them financially, so their class should not be certified. This is directly analogous to how the government employs the Brady “materiality” requirement or the “harmless error” fiction in criminal cases to preserve convictions on appeal or in collateral proceedings challenging them.

It’s an institutional habit. The status quo has been good to the institution and its designated members, so why change it? Note we say “designated” members. Shareholders are members, too. But they are not designated like directors or CEO’s are.

Cases like this are little noticed in media land. But they matter. The Celotex trilogy mattered, Iqbal and Twombly mattered and Goldman Sachs will matter, too. Unfortunately, not in a Good Way.

Here’s a thesis: one reason Trumpian populism caught on so much is that the rabble have no realistic chance of redress in the courts when they have been wronged. For forty years or more the primary focus of the SCOTUS has been to close off court remedies to the rabble as much as they can without the snobbery involved being too obvious. We’ve described this – and lamented this – before, in other contexts.

Then we get Trump.

Then the SCOTUS doubles down in one of the last cases it takes up in the excruciating year of 2020.

A tone deaf and decadent courtier class is a prelude to revolution, is it not?

The Death Of Federal Habeas Corpus

It was a divided SCOTUS, but the dissenters didn’t even say why they were dissenting.

In other words, why bother?

We have to correct ourselves. We noted this case back in November and erroneously reported that it did not involve the death penalty. We were wrong. We regret the error.

Well, maybe the poor schmuck wasn’t on death row, but if he wasn’t the only reason would be that the 9th circuit ordered him off death row. There was a habeas grant in the CA9, that is, but only on the issue of the punishment, which in fact was the death penalty.

Why did the SCOTUS take an interest this time, in this case? There’s really no good answer to that. In fact, they weren’t really that interested: there was no argument. It was a summary reversal. It was the ninth circuit. And it was an appeal from hen’s teeth rare habeas grant.

When something is hen’s teeth rare there is no reason for the SCOTUS to take it up. That an inviolable rule at the SCOTUS. But inviolable rules apply only to the rabble. The Government, as we have so often pointed out, is a favored litigant and a government’s request for relief is much more likely to be heard at the SCOTUS. And at this point there is practically a decade long tradition of summarily reversing ninth circuit habeas grants.

This particular one seems so gratuitous and unnecessary, though.

We wonder why the political left is so silent about the unprincipled conduct of the SCOTUS in favor of the government over individuals, in favor of the powerful over the powerless. It is so out in the open, so obvious to lawyers who follow SCOTUS goings on. And it isn’t limited to habeas, or to criminal matters. Some years ago we noticed a peculiar manifestation regarding the Alien Tort Statute (ATS). We figured that, like habeas, SCOTUS had effectively repealed that one.

As it happens, SCOTUS is just now confronting the consequences of its prior rulings that the ATS had no “extraterritorial application”, which as we noted in our earlier posts is the only possible application it has. Or had. We eagerly await the result in this latest kerfuffle over the ATS.

Need another example? We had a case a few years ago where the issue was whether principles of equity that are applied to everyone else can also be applied to the government. Perhaps unsurprisingly, the general rule is “no” – at least, it’s no if the party seeking to apply them is an individual. But if both parties are governments, the answer is “yes”.

You might object that the whole idea of this Let’s Hold Court Thing is that rules get applied evenly to everyone, not one rule for the government and the opposite rule for everyone else.

Meh.

Meanwhile the press is all over a different death penalty story in the news. This is the issue of President Trump and his outgoing AG William Barr being in a frenzy to carry out a bunch of executions. Of course, the SCOTUS could stop any of these executions if it wanted to. Somehow – again – that goes unremarked while the media score political points over someone being killed. Or not.

Some days we just don’t know.

Meanwhile again. It is Christmastide. Our own plans are to observe that until the Feast of the Epiphany on January 6th, as is traditional. And we otherwise endeavor to adopt a celebratory mood to ring out 2020. Many of our fellow human beings are doing the same.

Merry Christmas and Happy New Year!

Rule Of Law

Somehow, there were no serious problems with lawyers upholding the rule of law until some colleagues began representing Donald Trump.

This thesis is actually advanced seriously in this article from Yahoo News.

The obligatory and MSM ubiquitous phrase “baseless allegations of systemic voter fraud” appears in the article, of course. And the point? Lawyers advancing such claims should be “disciplined”.

We are currently reviewing evidence in a case where a prosecutor advanced a truly “baseless” allegation and, of course, obtained a conviction. Somehow, this has not generated any debate about the condition of our legal profession or the rule of law.

In other news, the SCOTUS is being praised for it decision throwing out the PA suit over the presidential election:

Lawrence: The Supreme Court ‘crushed’ Trump (msnbc.com)

Will those who are so busy praising the SCOTUS for that decision, such as Mr. O’Donnell, continue their high regard for the SCOTUS if it goes the other way in the TX state v. state litigation? We’ll check back with MSNBC, but the answer is not in doubt: of course not. Pundits, including those who are described as legal analysts and what not, have no principles other than that Trump is a bad man and a bad president and must be excised from the body politic. Or “crushed”, as the case may be.

The state of political discourse in the United States is vacuous. We take no pleasure in reporting that, but facts are stubborn things.

“Plainly”

That’s a word that shouldn’t be used in thoughtful writing. Unless you don’t mind being accused of polemics, instead of thoughtful, reasoned argument.

So check out the article from National Review, and we quote briefly:

Plainly, … the complaint [Texas] has filed is a political document that has no prospect of being taken seriously as a set of legal claims.

The author, one Andrew McCarthy, goes on to preemptively accuse the TX attorney general of engaging in polemics.

Project much?

Here’s Mr. McCarthy’s argument: if this was a serious case and not a “frivolous” one, the Texas Solicitor General would be bringing it, not the AG, because the Solicitor General went to Harvard. This is a terrible but subtly misleading argument on so many levels. It is true that the United States Solicitor General generally argues in the SCOTUS on behalf of the federal government, but there would be nothing untoward about the Attorney General – who outranks the Solicitor General – from arguing this or that case if he or she felt like it. Beyond that, the states do not have to employ the same division of labor as the federal government. It may be true that in most states the “Solicitor General” usually argues before the state’s highest court, as happens in New York, but that does not necessarily hold true when it’s the SCOTUS. State AG’s present cases to the SCOTUS with some frequency.

It’s also a terrible argument because more than 15 states have signed on to the TX lawsuit. The focus on the TX AG, as if by discrediting him you could discredit the whole case, is fatuous at this point.

Our opinion is more or less irrelevant except to the extent that our few readers here find it interesting or helpful, but for what it is worth we maintain that the TX SCOTUS lawsuit, joined by many other states, presents an important issue of federal constitutional law that the SCOTUS should decide. We note that the SCOTUS cannot directly hand the electors to Trump and change the result of the election. What they can do is nullify the current result in the Defendant states’ electors. It would then be up to the state legislatures of those states to appoint new electors. Although the legislatures of all of the Defendant states are Republican majority, that in no way guarantees that those legislatures would select only electors who would be bound to support Trump instead of Biden.

In other words, we here at LoS do not believe the SCOTUS should shirk this important task. We’ll soon see if they do.

Outmanuevered (Updated)

So Texas and a number of other states, including Alabama and Louisiana, have sued the “swing states” regarding the presidential election. In the SCOTUS. This could get interesting.

The argument – and it’s a good argument – is that they followed the federal proscriptions of Article II of the constitution and that the swing states did not, and that they elected Trump and the swing states went the other way, electing Biden, and that their choice for president cannot be undone by other states that did not follow the rules.

Talking heads are opining that the SCOTUS will never “hear” the case. That’s incorrect. Suits between states are part of the SCOTUS’ “original jurisdiction”, not the overwhelmingly more common “discretionary docket”, where the SCOTUS can hear a case if they want to. The rule with exercising jurisdiction is that it’s just as mandatory to exercise jurisdiction that you have as it is to refrain from exercising jurisdiction that you don’t have.

So the SCOTUS will “hear” the case, and apparently they have directed the Defendant states to respond by tomorrow.

The argument from the other side is that there was the COVID and that they had to alter the rules in an emergency fashion, without the legislatures acting, and that the SCOTUS should not overturn the “will of the people”, and so on. That is not a good argument. At the SCOTUS, the constitution governs.

There are arguments to be made that the SCOTUS should not invalidate the election of the apparent winner. Those are not arguments for the SCOTUS. They should be directed to the state legislatures of the swing states, who have the option of appointing Biden electors anyway if the SCOTUS invalidates the popular vote determination due to irregularities or fraud or an unconstitutional procedure.

This is not a comfortable position for the SCOTUS Justices. If they go one way, they are banished from polite society in DC. If they go the other way, they have to break their own well settled and well known rules, possibly even to the point of dereliction of duty.

So this is really interesting. We’re on pins and needles here at LoS!

Update: From CNN. This is basically disinformation. Which we have come to expect from that network. Meanwhile Vox Day tracks the opinions of “legal experts”. Clearly wrong legal experts, who seem to believe that the SCOTUS can refuse to “take up” the states v. states case, as if it were there on petition for writ of certiorari instead of SCOTUS original jurisdiction, where SCOTUS has no discretion BUT to take it up.