Vaccination For Fun And Profit?

So this is a hot issue these days. And an interesting one. And it poses questions that are largely out of our field – immunology, epidemiology – so we’re careful about making grand or definitive pronouncements. Our traditional position has been something along the lines of “live and let live”. If you feel the need to vaccinate, why, go right ahead. If you object to vaccination, well, by all means refrain.

But our traditional position appears to be no longer feasible. We are being forced to take a position for ourselves and everyone else. So we have to think it through in our usual thorough, systematic way, emphasizing The Reason as governing The Science, because as we’ve noted we have a background in epistemology and that is the actual subject that is being implicated by these surprisingly prevalent meta-arguments, something we have pointed out before.

We start from the bedrock principle of “informed consent”. Any trespass against this principle requires compelling justification. This is not arguable. At least, it’s not arguable unless you’re willing to concede that the tribunals at Nuremberg got it wrong.*

We don’t concede that around here. We’re pretty surprised that anyone in modern times would be willing to concede that. Justice Holmes might have, back in his day. But then his willingness to do so was not his finest moment, was it?

But we digress.

We’ve been suffering collectively from a worldwide pandemic for more than a year, beginning around March of 2020. We’ve placed our faith in “public health authorities” to prescribe a collective solution to the dire and deadly threat posed by the responsible virus, known popularly as COVID-19.

Well, some of us have. Others of us object quite strongly, resenting the forced bureaucratic imposition of nationwide or statewide “lock-downs”, and historically peculiar – not to say bizarre – behaviors such as wearing masks and “social distancing”. The objection is that this is a largely manufactured crisis, that the seriousness of COVID-19 is greatly exaggerated, and that the whole episode is an irrational panic, like witch burning; or a power grab by power hungry swamp dwellers; or a money grab by money hungry pharmaceutical companies; or, finally, a worldwide conspiracy to set the stage for a “Great Reset” that will result in universal human enslavement under a new and sinister technological oligarchy (That last is a “baseless conspiracy theory”! The BBC says so!!).

There is significant disagreement about the very facts and circumstances that are cited as justification for disregarding that bedrock Nuremberg principle, in other words, and the motives, honesty and integrity of those attempting that justification.

Then, of course, there is the meta-argument: there is no significant or legitimate disagreement. The Science provides the only acceptable interpretation of the situation, and The Science prescribes mass – nay universal – worldwide vaccination as the only acceptable solution.

That is quite an extraordinary claim. And of course it is an epistemological claim, not a scientific one.

For our part we follow the newsletter of an osteopathic doctor named Mercola, who is “all in”, as they say, on the side of the objectors, occasionally teaming up with Robert F. Kennedy, Jr. We also engage regularly in our Facebook activities with other doctors who have the opposite point of view.

The – for want of a better term – “established” medical authorities do not generally engage the objectors like Mercola or RFK Jr. on the merits of their claims; rather, they seek to discredit them, sometimes quite unfairly, and censor their contentions. On those rare occasions when they do engage on the merits, they lose the argument, at least to the extent that they do not succeed in “debunking” the objections in any meaningful way, although we hasten to point out that even though they might not be “debunked” it is quite possible to disagree on the merits, and we do not purport to resolve that disagreement here.

For their part, the mainstream media (“MSM”) shill for the established medical authorities, much as they shill for the police and other authorities. We won’t go down the rabbit hole of why that is, at least not this morning, but we note that it’s too obvious to really debate the point.

The media approach is a “tell” as they say – what we used to call a “contrary indicator”. One faction engaging in character assassination and censorship is another tell. And when that same faction, in their few forays into genuine engagement, lose the debate on the merits, at least in the sense that they do not succeed in “debunking” the position of their interlocutors – we come readily to the conclusion that they are the faction in the wrong. It is not difficult, intellectually, to reach this conclusion and it is the only fair and objective conclusion under the circumstances.

Want another tell? Efforts to make vaccination more compulsory have become a Thing in recent years, some of it pre-dating the current pandemic. This supports a conclusion – doesn’t mandate the conclusion, but certainly supports it beyond any rational debate – that the pandemic is a manufactured excuse – by whomever – to further push vaccination. Even if this is true, of course, it may be that those pushing vaccination further do not have evil motives. But let’s just say that it’s not a good sign.

That does not, by the way, mean that it is not legitimate to disagree on the narrower, more modest point. That is, it is perfectly reasonable, even if it is likely wrong under our analysis, to disregard all the tells, decide that “The Science” is settled, and get yourself vaccinated.**

But that is not the issue on the table. The issue is not whether people are free to get vaccinated or not but rather whether those who do not want to be vaccinated can be compelled to do so in violation of the Nuremberg principle.

And that, ladies and gentlemen, is not a close call. Remember we said at the beginning that a justification for overriding the Nuremberg principle would have to be compelling, and that this is likewise not a debatable point. But not only is the profferred justification not compelling, it is not a winning argument at all, objectively speaking.

And that’s that! We know that many of you find it much more difficult than we do to think things through systematically. So this is our little public service this morning.

You’re welcome!

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*We understand that Nuremberg dealt most specifically with experimentation and not clinical treatment, but the standard has been a fixture in the time since for both.

**We ourselves, owing to our tour of duty as a key component of the national defense in the US Navy, are among the most heavily vaccinated persons you could ever encounter. We never felt the vaccines we received, by the dozens over a few days, did us any harm. But that is not the point here, obviously.

Cause And Effect

Two items this morning remind us of how difficult it can be to focus on what causes what.

Post hoc ergo propter hoc. It makes sense to infer that what comes right after something else was caused by the something else. But of course it’s a logical fallacy.

Scott Greenfield is looking at the same phenomena we are – the civil unrest, the calls for abolishing the police, and so on – and attributes the problems to the police themselves. And of course to an extent he is correct. Certainly the police as a group are not blameless in the situation they find themselves in.

But we focus on the legal profession and the courts. We figure that constitutionally speaking, these are the check on the police, so if the police are failing the cause would be there, and not just the police themselves. We also figure that chain-of-command speaking, we are the supervisors of the police, and the problems people are now perceiving with the police are nothing if not problems of poor supervision. Or a lack of supervision, if you prefer.

Indeed this blog started more than 10 years ago focusing on the same thing and was, for the most part, shouted down by other members of the profession, Mr. Greenfield himself perhaps the most prominent among them.

Is he right, or are we? A little of both, probably.

Our habit, it turns out, is thinking things through. And when you think things through, you often go back further, and forge deeper, before you declare that you have found the cause of some observed thing.

Another example of that in our approach to things even on this little blog itself is our proposals regarding the “financial crisis”, which we have usually cautioned should be referred to as a “rule of law” crisis.

Almost as long ago, we proposed that the solution to the problem was a jubilee and a return to the gold standard, and figured the only way to get there was with a constitutional amendment. At least in the US.

We had no takers then. Now? There’s a lot of talk about debt forgiveness. There is talk of a “reset” in the wake of the current pandemic, and some people believe it will involve a currency restructuring.

But it won’t be by a constitutional amendment and it almost certainly will not involve a return to the gold standard.

It seems to us that before a solution a problem can be devised, the correct cause of the problem must be identified. And that, it seems, is usually a tougher task than any posed by the problem itself.

Ugh.

Unhinged

From Michael Cohen that’s to be expected, we suppose.

But how does a media outlet cover this story without the slightest mention of the attorney client betrayal going on?

And Professor Turley, who wields a pretty big internet megaphone, is focused on what the feds took or didn’t take in their search. The elephant in the room remains the idea of raiding Giuliani’s office in the first place.

Obviously, lawyers can be prosecuted like anyone else for crimes they themselves commit. But when a prosecution stems from their representation of a client, and the prosecution also seems aimed at the client more than the lawyer that raises deep concerns about what the prosecutors are doing.

The silence from the punditry bar has been deafening. We’re in new territory again, and it’s a bleak landscape indeed.

Ugh.

Michael Cohen – Increasingly Weird and Disturbing

He surfaces from time to time in this or that article in the news feed.

The point always seems to be that he is cheering on the federal investigations that put his former client, Donald Trump, in criminal jeopardy. Let us say that again: he’s trying to help those that are out to prosecute and imprison his former client.

Not that he’s ever going to be much help. It’s hard to imagine a worse witness.

But what is intensely concerning about this is the eagerness of the press, or at least some of the press, to provide publicity for this excruciating professional betrayal, excruciating on every level for every member of the profession. One would think even for a former and disgraced member, like Cohen, there’d be limits. But no. And a press that would be horrified if the client were anyone other than the loathsome Trumpster, doesn’t even note in its reporting what a terrible betrayal this is, how damaging to our beloved “system”.

The duty of loyalty is perpetual. It survives even the death of the client.

Now, of course, we have the looming prosecution of Rudy Giuliani, apparently for conduct that occurred in the course of his representation, as an attorney, of the same loathsome Trumpster. Just as when the feds went after Cohen, there is no outrage here, even from the places you would most expect it. Even when the press increasingly portrays this basic professional obligation as something that people “hide behind“.

We are bemused, as well as disturbed. As we were last month. At this point a previously sacred rule is being routinely violated by the government, and no one seems to notice or object.

Ugh.

Ke$ha Redux Redux

“It goes on, Judah!”

Apparently someone important was reading over here and picked up on the fact – which only we seemed to find significant at the time – that having the wife of a SONY Records’ attorney sit in judgment on the Ke$ha v. Dr. Luke case was, you know, bad optics. So the litigation went to another judge but the result was the same and we’re a little puzzled by the general media silence about it, or why in the #MeToo era the headlines appear to stress that that this is a win for Dr. Luke without dwelling too much on what the case is really about. Because if they dwelt on that they would have to explain why this narrative is being treated so differently than other #MeToo narratives. Which has pretty much been our point all along.

We suppose it does not help Ke$ha’s case that Katy Perry has denied Ke$ha’s allegation that Dr. Luke had also raped her. Meaning Katy Perry. Perry denied this allegation fairly emphatically under oath at a deposition.

Does Perry have a motive to falsely deny the story? Of course. The industry is backing Dr. Luke. The industry is the source of Perry’s fame and fortune. Does that mean that Perry is lying? Of course not. Could she be lying? Sure.

That’s the kind of thing we submit to juries to decide. Or, we used to submit them to juries. But summary judgment, doncha know.

Anyway, this is where things stand now. The saga continues.

Switching gears, but still focused on puzzling media narrative choices, former New York Attorney General Eric Schneiderman has been subjected to attorney discipline and his license is suspended. No major media outlet has reported this rather startling development prominently, so far as we can tell. Oh, it’s reported. They always report. You can never accuse them of not reporting. But it’s buried somewhere.

We once harbored high hopes for Mr. Scheniderman. Dashed, of course.

But more to the purpose here: why is the Schneiderman story unworthy of being featured? Or Ke$ha’s? Then on the other hand, Governor Cuomo’s conduct has apparently been an issue for years, and only recently – and quite suddenly – has it become fodder for the news cycle. Why all the silence for so long? Why is the period of silence now over?

We wish we could provide an answer to our readers (all three of them!). We wonder whether political science is involved, as it is in so many other examples of social and institutional incoherence.

Ugh.

Immunity

There’s a lot of talk about immunity lately. To end the “pandemic” we are advised that enough people need to be inoculated that “herd immunity” will be reached.

Then there is “qualified immunity”, which has nothing to do with vaccines or pandemics but is rather an immunity from civil liability granted to all public officials except for prosecutors and judges.

And that’s only because prosecutors and judges enjoy absolute immunity with no “qualifications” whatever.

But this morning we see in our news feed that they are taking up the immunity thing in the Congress, as we suggested Congress should do over nine years ago. The Congress is focused on cops, of course, and so all that seems to be on the table is what the courts have extended to cops, and that is the immunity of the “qualified” kind.

As usual, the Congress should be hearing from us. Clearly we were way ahead of this curve – nine years ahead of it – and again as usual we are chagrined that for some reason the powers that be haven’t beaten a path to our door.

But never mind. It seems the Republic can’t be saved anyway.

And we’re not really chagrined. That’s just a figure of speech. And just used it because we like the soft “ch” sound. So French-ish!

In any event, here’s something to ponder about all this SCOTUS-invented immunity business. The immunity comes on top of the summary judgment remedy and the 12(b)(6) standards of Iqbal and Twombly, which already pretty much guarantee that any lawsuit brought by the rabble will be thrown out without ever seeing a jury. Immunity is on top of that. It actually doesn’t really add that much. The deck is already stacked.

It says a lot about our system that it can be so heavy handedly one sided.

Accountability Gap

Probably the last thing we’re going to say in the wake of the Derek Chauvin verdict is this, and we’ve said it before but it bears repeating in part because no one else is saying it:

Why are lawyers and courts and judges getting a complete pass while we’re actually prosecuting and imprisoning cops?

We can understand that the optics of the work of lawyers and judges are unlikely to include choke-holds and whatnot, but surely we can think it through a little more than that. People are on “qualified immunity” again, for example. Largely getting it wrong, as Scott Greenfield recently pointed out. But of course that’s not the main thing here.

The Main Thing is that the SCOTUS just made up qualified immunity to do what they do best, which is favoring the government, and generally favoring those who are more powerful and/or wealthy, those who are already winners in the game, over everyone else. And no litigant is more representative of that than….the government.

We’ve pointed this out before. Repeatedly. For years.

And why just “qualified” immunity? That’s the lesser kind of immunity afforded to cops. Judges are absolutely immune. They gave that to themselves, and just made that up, too. And they extended absolute immunity to prosecutors.

That is, why don’t we abolish absolute immunity while we’re at it?

We haven’t even scratched the surface of what is really wrong. We won’t begin to do that until some very hard questions are asked about the legal profession and the judiciary. It’s past time to do that.

In other words, sending Derek Chauvin to prison is no more than, and probably considerably less than, a band-aid. Lawyers – especially prosecutors – and judges must be called to account as well.

Ugh.

To Be Clear…

Because sometimes we fall short of that here at LoS, as we maybe just did.

Our position is that the cops, including Derek Chauvin, are bearing the brunt of the consequences of what are really our – that is, the legal profession’s and judiciary’s – failures. And it bothers us that we and our colleagues are getting a pass while the cops are taking all the heat. If the cops are monsters, in other words, we are Dr. Frankenstein.

Moreover, the likelihood is that unlike 99.9% of criminal defendants, Chauvin will have his convictions reversed on appeal after everyone has stopped paying attention. Because he’s a cop. And this is not even cynicism. The system cannot help it. It has no other narrative to fall back on.

The only silver lining in all this is that finally, the shoe is being placed on the other foot. Everyone feels good about that. They shouldn’t.

What’s really needed are new shoes. And we are a long way from realizing that, much less doing anything about it.

The Chauvin Verdict And The Real Problem

When viewed through the lens of The Reason, the guilty verdicts were somewhat more than a stretch. But when looked at empirically – that is to say, how would the system come out in almost any other case with the same facts – the verdicts are entirely proper.

What this says about us and our system at this point?

Let’s tie this in with our recent discussions about Brown v. Davenport.

To review, we noted that Judge Readler of the 6th circuit dissented from the habeas grant and that we had “some sympathy” for his position. But now that we have had the opportunity for reflection on the matter, it is quite clear to us that Judge Readler’s position is, you know, dangerously wrong. We’re not accusing him of anything: for all we know this is all a predetermined outcome about which there has been much discussion off the record among many judges. We harbor the hope – probably irrational – that the SCOTUS in taking up Brown v. Davenport is poised to actually improve the coherence of the law in this area.

For a change, we might add.

Basically, what it boils down to is this: we currently have these fluctuating (and highly theoretical, but that’s something to be discussed later) standards by which federal courts and appellate courts review criminal convictions of state courts for constitutional error. Relevant here is that there is case law establishing (very unfortunately, in our view) that the standard for overturning a conviction for constitutional error in a collateral habeas action in federal court is more stingy stringent than if the same constitutional error is reviewed on direct appeal.

This is very wrong and bound to be incoherent, but this is what the SCOTUS has ruled, primarily since 1993’s Brecht v. Abrahamson (published 28 years ago to the day!). We think, as we so often have, that Justice White’s dissent captures the point perfectly:

“Assuming that petitioner’s conviction was in fact tainted by a constitutional violation that, while not harmless beyond a reasonable doubt, did not have “substantial and injurious effect or influence in determining the jury’s verdict,” Kotteakos v. United States, 328 U.S. 750, 776 (1946), it is undisputed that he would be entitled to reversal in the state courts on appeal or in this Court on certiorari review. If, however, the state courts erroneously concluded that no violation had occurred or (as is the case here) that it was harmless beyond a reasonable doubt, and supposing further that certiorari was either not sought or not granted, the majority would foreclose relief on federal habeas review. As a result of today’s decision, in short, the fate of one in state custody turns on whether the state courts properly applied the Federal Constitution as then interpreted by decisions of this Court, and on whether we choose to review his claim on certiorari. Because neither the federal habeas corpus statute nor our own precedents can support such illogically disparate treatment, I dissent.”

Note that the essence of Justice White’s dissent is that the majority’s position is illogical. That’s The Reason in action. A breath of fresh air coming from the SCOTUS at this point, though we hasten to add that this is from 28 years ago. Whether The Reason can prevail now when it couldn’t then is a serious question.

Happily, Brecht was basically a 5-4 decision, so this bit of SCOTUS incoherence was not a really solid holding. Which is a good thing. But it’s there, so it generates mischief.

Fast forward to 2015 – a mere six year ago! – and we have another 5-4 decision out of the SCOTUS that hearkens back to Brecht, and upon which Judge Readler is basing his dissent in Davenport, and that case is Davis v. Alaya. In Davis Justice Alito engages in a painful analysis of every possible justification for dismissing a juror during voir dire where the suspected reasons is race, which would violate Batson v. Kentucky. Never mind. The point is, as it so often is with Justice Alito, that the petitioner in Davis is a really, really bad criminal.

But this is the SCOTUS, not a trial court, and Justice Alito’s concerns are misplaced. The most importanest thing ever for the SCOTUS is to be coherent, not to pull out all the stops to deny federal habeas relief to a bad guy. So the dissent – and there are four of them – wind up echoing Justice White’s dissent in Brecht, and for that reason alone we should suspect that the dissent has the better of this argument. In any event, here is what they say, in a nutshell:

If a trial error is prejudicial under Brecht‘s standard, a state court’s determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable.

Just so. It cannot be otherwise, and that’s the essence of it. The law of non-contradiction, doncha know, that must be observed unless reject The Reason and you are a follower of Nietzsche. Which we have discussed before.

So we hope that the SCOTUS has a fight over this again in Brown v. Davenport and comes out on the other side and overrules or limits Brecht and puts Davis v. Alaya in its place. Which is the dustbin of history, we think.

But there’s a deeper point to be made here, too.

This entire debate is almost risible, in the sense of being absurdly academic, though it is not risible for people on the receiving end, as is also so often the case with SCOTUS goings on.* The context of the whole thing is that the “harmless error” standard is very difficult for the government – who bear the burden of proving harmlessness “beyond a reasonable doubt” – to meet, but that the Brecht standard, that requires to poor schmuck to bear the burden of proving that he was likely harmed by a constitutional error, provides the deference to convictions that holds our fragile system of federalism and finality and whatnot together.

But the theory of what harmless error is, which the SCOTUS is relying upon, and the practice of what it is – well – these are two very different things:

Years ago, during an appellate argument in the state of Washington, a judge asked a prosecutor why, in light of a rule that prohibits trial prosecutors from asking one witness whether another witness is lying, the prosecutors from his office continued to ask the prohibited question. “It’s always been found to be harmless,” he explained.

When the court published its decision, it rejected any suggestion that courts “wink at intentional and repeated unfair questioning by prosecutors under the rubric of harmless error.” But the court then affirmed the conviction, concluding that the prosecutor was “correct in relying on the doctrine of harmless error.”

Harmless Error: Explained – The Appeal

Put another way, “harmless error” is itself a joke in practice. All errors are held to be harmless so we can uphold convictions. We do not say this lightly. But it is true. And so we say it. Because that is our calling here at LoS.

Ugh.

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*We hazard a guess that the reason SCOTUS took up Brown and not Whatley is that in the former case the government is the Petitioner and in the latter case the poor schmuck on death row is. The cases present practically the same question, so even if SCOTUS didn’t want to hear argument in Whately, shouldn’t they have just held it pending the outcome of Brown? Or maybe this is a further indication of the outcome in Brown. An ominous indication, we should think.

Couple Things…

In cogitating over the significance of the Brown v. Davenport grant, we noticed this and that.

This: there was another cert petition at the SCOTUS presenting more or less the same question that had been pending and relisted and rescheduled numerous times. Then the SCOTUS denied it, and Justice Sotomayor dissented.

We don’t know what to make of this at this point, and we are still digesting overall the point of interest in Brown v. Davenport, because that seems like a difficult issue intellectually, but a really insignificant issue in practical effect. It might just be another indication of an absurd insularity at the SCOTUS that they seriously looked at either of these cases, in the end taking one up and not the other, for reasons that are probably bound to be unknowable. We think there might be a tie in to a case SCOTUS handed down about four years ago. But we’re trying to digest that thought as well.

Ugh.

That: We have little noted the recent and somewhat inexplicable political travails of New York’s Governor Andrew Cuomo. We say inexplicable because he had seemed to reach an apogee of popularity so recently what with all his COVID-19 briefings so well received by the usual suspects. But we are gratified to point out that we were expressing skepticism about the Governor all along. We don’t know why our observations gained no traction whatever whereas the seemingly less significant but more recent charges of misconduct are poised to derail the Governor’s tenure, other than the usual one: we cry out in the wilderness of a virtual kind.

Certiorari Courts

So, you’d think with all the talk about expanding the number of SCOTUS Justices at some point rationality would settle in and we’d take a close, sober and objective look.

Nothing doing. This is the United States in post Trump world and we don’t do rational or sober or objective.

But we at LoS are going to make the effort, as we so often do, by ourselves.

There are nine Supreme Court Justices, a number that apparently hasn’t changed since 1869. In 1870 the population of the US was about 38 million. In 2021 it’s about 330 million. If we’re going to start talking about expanding the number of Justices, then, these figures suggest a number. But that number – 90 or thereabouts – is, you know, completely unworkable.

Not to mention, a ten fold increase in population does not necessarily generate, or even suggest, a 10 fold increase in the number of legal claims or legal issues. It does say something, we think. But that’s for another post.

What we’d like to focus on this morning is that the SCOTUS, however dysfunctional it may be – and we think it is quite dysfunctional – doesn’t really do a lot, because with 9 Justices in a country of 330 million it really couldn’t possibly. In practical terms the SCOTUS is less important than other institutions, and less important even than other courts.

Which brings us to the point of this post, and not some future post we may or may not ever get around to writing.

Let’s look at some other numbers, just in the federal courts. There are 673 authorized US District Court judges. This does not seem like a lot for a country of 330 million. And there are only 179 authorized judges on the federal appeals courts. Same observation there.

According to wikipedia, the number of these lower federal court judges have substantially increased since, say, 1950: three fold for District Court judges and two fold for the appeals courts.

But let’s focus on the appeals courts for now.

We submit that the number of these judges is way too low. There are 13 such courts, mainly distributed geographically across the US and its territories, and what has happened with them over the last few decades is disturbing. Their primary function is to review the judgments of the District Courts, but they do not do that in any serious way. At one point a 7th circuit judge (Judge Posner) admitted this but the published article in which he did has disappeared from the internet.

Instead, these courts have become certiorari courts like the SCOTUS. Which is to say, they pay close attention to only a small number of the appeals that are brought to them. For the SCOTUS this is out in the open, and the SCOTUS has its criteria and practitioners know what they are and work within those parameters. But the courts of appeal cannot admit that they are certiorari courts even though they function exactly like that at this point.

And what are the criteria for deciding which cases go in the “A” pile and get serious attention and the vast majority – the “B” pile – which get no attention at all? Because the courts cannot be open about how they are really functioning, the answer is…nobody really knows. Some criteria are predictable: there’s a lot of money involved, or prestigious law firms are involved, or the government is a party and in a hen’s teeth rare occurrence actually lost at the District Court level.

Now that we think about it, those are pretty much the criteria. With a few others we may mention elsewhere. In that other post we may get to someday.

We think one of the biggest problems with the federal judicial system is the absence of meaningful review on appeal, and one of the primary drivers of that is….not enough appeals court judges. It takes at least three of them on a panel to entertain an appeal, so functionally there are only 60 panels to hear appeals from 673 District Court judges. To have meaningful appellate review for the cases that warrant it, we’d hazard a guess that that 60 number should double.

At least double.

We noted elsewhere a study that we can no longer find indicating that one of the primary obstacles to expanding the number of federal appeals court judges surprisingly comes from the judges themselves, who apparently feel that such a move would diminish their prestige.

That says a lot right there. And we can’t say more, this morning, so we may have to return to the subject at another time to expand upon these themes. We know our readers (all three of them!) will be impatient with this gap, but we have no alternative at the moment and pledge our best efforts.

In other words, to be continued………

Brown v. Davenport

Let’s face it, for the most part things at the SCOTUS have gotten rather tedious. But Brown represents a possible departure from the norm.

A strange grant. There were only two indications that there was any SCOTUS interest at all – a) the government was the Petitioner; and b) and there was one, just one relist – before cert was granted.

More importantly, it’s an interesting grant. What is SCOTUS actually up to here? Why the seemingly sudden, out-of-the-blue interest in this case, a habeas case?

Brecht and Chapman are similar ideas, and both are very useful – not to mention favorable – to the government in preserving criminal convictions on appeal and on collateral review. Although notably, Brecht pertains only to the latter. Chapman applies across the board, on direct appeal as well as collateral review. Or does Chapman apply on collateral review at all since Brecht does already and Chapman is “subsumed” into Brecht?

We’re on pins and needles over here at LoS. We may have a personal and professional connection to this development. We may in fact have to do something about it all. Time will tell.

An odd tidbit here. We are going only from memory, but it seems to us we spoke with an attorney named Chad Readler back when he was arguing McQuiggin v. Perkins before the SCOTUS on behalf of the poor innocent schmuck He was in the Columbus Ohio office of Jones Day at the time. We were interested in McQuiggin at that time. We had a case that might have been affected by the outcome. At that time. And maybe now, too.

Mr. Readler has gone on to be appointed to the United States Court of Appeals for the 6th circuit. By then President Trump.

He sat on the relevant panel and authored the dissent in Brown v. Davenport.

Interesting, no?

Meta SCOTUS (Updated)

Odd that we missed this one. An actual habeas case. And today, the SCOTUS took it up.

What is the scintillating issue the Justices seized upon, committing all manner of “judicial resources” to resolve it?

Issue: Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.

Maybe not so odd. The case didn’t seem to be on anyone’s radar. Not even the SCOTUS blog. At least, not before today. It was relisted only once. It had no amicus participation.

As is so often the case with a cert grant, though, the government is the Petitioner, and this is especially true of a habeas case.

Yet this one is a tiny bit interesting.

Overall, we object to the SCOTUS taking up any habeas case at the behest of the government. While the government-as-petitioner means that there was a habeas grant, as a practical matter federal habeas cases are never granted, so there’s no reason for the SCOTUS to take a look, because of that alone. It is true that federal habeas cases are routinely granted in death penalty cases, but the same objection applies there: too rare to have any “general importance”. Let the states kill or not kill as they see fit. And if some federal judge somewhere decides that the state can’t kill in this or that case, well, that’s even more rare than the state deciding to kill in the first place. Just leave it alone. What’s the point in the SCOTUS taking it up?

Here’s what strikes us about Brown v. Davenport, though. Brecht holds that a habeas petitioner must show prejudice by the constitutional error he is alleging before relief can be granted, meaning basically that but for the constitutional error he would have been acquitted. The AEDPA requires that a state court’s determination of a federal issue in upholding a conviction must be “unreasonable”, not just incorrect.

Question: is the Chapman “harmless error” ruling of a state court subject to the AEDPA “deference”, so that even if the state court found the error to be harmless when it was not, that error would have to be even worse than that – it would have to be an unreasonably wrong finding that the error was harmless. Or is that question resolved when the underlying error is plainly and unreasonably wrong?

In Brown v. Davenport, the shackling of the Defendant at his trial was plainly an unreasonable federal constitutional error. Could it still be “harmless”?

That’s the question that has attracted the attention of the attention stingy SCOTUS.

The 6th circuit held, over a dissent, that once a prejudicial error under Brecht was made by the state court it’s not necessary to inquire whether the error was also “harmless” under Chapman. We guess one way of putting it is that if it’s prejudicial there is a conclusive presumption that it is not harmless. The State doesn’t get to argue “harmlessness” twice: once in arguing that there was no “prejudice” under Brecht; and the other in arguing that, well, even if there was prejudice, it wasn’t such a terrible error intellectually. The second argument focuses on the state of mind of the state court. We’d call that a “meta” concern. We think meta concerns are the stuff of due process.

We actually have some sympathy for the argument that the dissent made.

We’ll be interested to see how this one pans out. Next term, of course.

The other thing we are overdue to explain to our readers (all three of them!) is the significance of the other recent SCOTUS foray into habeas, which went the usual way (a summary reversal of a habeas grant)(also out of the 6th circuit. Hmmm.), when compared with other cases that the SCOTUS eagerly spent its time and treasure upon. To see if we can come up with some kind of common rule.

And the answer is…..we can’t!!! Well, no, that’s not fair. We’ve had a thought. Remember when the SCOTUS took up the case of Anna Nicole Smith?

Make of it what you will. And discuss among yourselves!

Update: Actually, John Elwood over at SCOTUS blog did take note of the Brown v. Davenport case. Good call, John! We normally follow the “Relist Watch” closely, but this was pretty quick: the case appeared on Relist Watch on March 31st and was granted just a few days later.

Sizzling SCOTUS

It’s a misnomer, of course. The SCOTUS doesn’t sizzle.

We mean it only to suggest that the last week has seen a certain SCOTUS bent towards what might be termed trendy issues.

We’re not sure how “trendy” is defined here. But let’s take a look at two examples and see how it pans out in context.

The first is the NCAA anti-trust argument that took place Tuesday. We’re of the opinion that if you applied the anti-trust law to the practices of the NCAA and their member schools those practices would certainly violate the anti-trust laws. The claim on the other side, as we understand it, is that the anti-trust laws do not apply because the NCAA operates an amateur (not-for-profit) rather than a professional sports league.

NCAA schools and their sports programs, such as Notre Dame football, generate a huge amount of popular interest and, it should be noted, revenue. There are arguments that because of the educational nature of the institutions involved that they should retain, and perhaps more importantly be seen as retaining the characteristics of amateurism. The other side looks at the sheer amount revenue involved and, echoing our new national leader, collectively complains “C’Mon, Man!”

But as you might imagine, we here at LoS have a slightly different approach: who cares? We like college and professional football as much as the next guy. But we wonder: why does SCOTUS take up a case about something as frivolous as a game? We have perhaps as a country gone stark raving mad in the importance we attach to these fundamentally unimportant endeavors, but does our SCOTUS have to follow suit and devote “scarce judicial resources” to sorting out this particular question?

Here’s an irony about our position, though. We’re trying to co-opt the snobbery appeal with that argument. The NCAA also makes the snobbery appeal with their application to be heard, which was granted and we think should never have been granted. From their petition for certiorari:

At issue in this case is whether the nationwide
rules that define who is eligible to participate in NCAA
sports will henceforth be set by the NCAA or by one
federal judge in California, assisted by the imagination
of plaintiffs’ lawyers…..

Anytime you see a reference to “plaintiffs’ lawyers” in SCOTUS filings it is an appeal to the snobbery of the Justices and their law clerks. As with so many things, we’ve talked about this before. This kind of snobbery is not so much class snobbery as it is professional snobbery. Plaintiffs’ lawyers went to lesser law schools and had lesser academic “success” and to the SCOTUS inhabitants it is a constant imperative to preserve and advance the transcendent importance of this distinction between lawyers.

We, on the other hand, are trying pointing out that with the NCAA case the SCOTUS is wasting its time on a low brow and frivolous pastime. That’s an appeal to snobbery, too. But we suspect SCOTUS Justices and their law clerks are not snobs in that way.

The other example is the cyber bullying case. Look at all the amicus briefs!

One important observation on this one: school administrators don’t have enough to do if they’re litigating this all they way to the SCOTUS, not to mention all the effort put in to amici.

A number of things are in play here. School districts are government, and government is a favored litigant, especially at the SCOTUS, for reasons that are both understandable and objectionable. Understandable because government interest is probably a reliable indicator of wide interest, in theory. Objectionable because in practice government interest is often driven by the most fervent, not the most rational.

Then there is the computer and internet-related, social media angle. SCOTUS Justices are for the most part technological luddites, but their law clerks are not. The Justices are probably over-impressed with the importance of cyber anything, but it’s a Thing.

What do these two examples tell us then, about how trendiness matters at the SCOTUS? Next post.

Error Correction

The SCOTUS doesn’t do it. Except when it does.

And when is that? When some poor schmuck gets relief on habeas corpus in a federal court. The SCOTUS has been, and remains, anxious to overturn any such ruling.

And it just did so again this morning. 8-1 vote. Sotomayor dissents but doesn’t say anything.

It is quite a remarkable thing, really. Breath taking, this long standing SCOTUS penchant to eradicate the Great Writ in federal courts, disregarding their own rules to do so. See SCOTUS Rule 10:

A petition for a writ of certiorari is rarely granted when the
asserted error consists of erroneous factual fndings or the
misapplication of a properly stated rule of law

But when the government is the Petitioner and it’s a hen’s teeth rare habeas grant the Justices are all over the facts in order to summarily reverse. Last time it was the 9th circuit. This time it’s the 6th.

This is one of those silent outrages. You’d think our press would be all over this kind of thing but they aren’t.

Maybe more on this later.