But all that commentary was on the apparent and public and ostensible legal aspects of that case. There is another interesting question lurking behind Pottawattamie. Not to be too cryptic or conspiratorial about it but, you know, not everything that goes on about a case appears in the published opinions. There are parties to a case, for example. They pursue this strategy or that. Sometimes the parties are what I call “institutional”, meaning they are not a real person but some organization or other: the government, an insurance company, a bank.
The parties often don’t disclose to anyone why they’re doing what they’re doing. They do not make their strategy sessions open to the public, nor should they.
In Pottawattamie you had the classic case of the downtrodden, individual litigants versus the institutions. The institutional litigants argued their execrable position (that police and prosecutor use of perjury and fabricated evidence to charge someone with a crime violated no one’s rights) all the way from the federal district court, to the federal court of appeals, and finally in the Supreme Court itself (pdf).
But then, after the oral argument at the SCOTUS, they bought off the poor saps on the other side for a paltry $12 million. Which is not a lot of money in the grand scheme of things, but it is a lot of money for the powerful to fork over to the powerless. At least nowadays. The poor and the powerless are regarded by their betters as little more than annoyances and punching bags.
So there is generally no need, and certainly no inclination, to pay out to untouchables like convicted criminals. But for reasons of their own, the institutional litigants in Pottawattamie found that this occasion was the exception. Obviously, the decision was driven to some extent by the fear of losing the case in the SCOTUS, but it causes one to wonder: it’s evidently important enough to them to fork over $12 million, but who actually decides that? Who is the “them”? An insurance company? The organization of prosecutors? Some other part of the local, state or national government?
What sort of discussions took place before that offer was made?
I would like to have been a fly on the wall in one of those offices. I would like to know who – and what – I am up against. Although I suspect I might know, at least in the larger sense.