Moral Coarsening And Regression

I once suggested to a court that the intellectual and moral landscape in which the legal profession and justice system operated had changed over years in ways that might charitably be described as….disturbing.

Some of the case law provides a neat and tidy measure of the argument.  We’ve been talking about “due process of law”.  There are times when it’s very clear that a due process violation has occurred because it is so intimately related to traditional definitions of the process itself.  Thus if you get arrested and no one tells you what you’re supposed to have done wrong (“notice”) or they tell you but you don’t get to defend yourself from the accusation (“opportunity to be heard”) well, then, you just haven’t received “due process of law”.  The very procedures are defective, and you are “due” more than that.

But then there are other times when the procedures – the “process” – may have the appearance of being what is “due” but it’s all a sham.  Nazis and commies were the gold standard for this, staging “show trials” where they’d convict their political enemies and dissenters in a “trial” the only real purpose of which was to provide the veneer of due process.

It was probably in response to this fresh wound to the integrity of judicial systems that our own in the US made a considerable effort in the 1950’s and 60’s to put some flesh on the bones of the “due process” idea, to define just when a process, seemingly proper on the surface, has in fact degenerated into the equivalent of the Nazi/commie show trials.

You could say this has not gone well.  There was a flurry of activity during the Warren Court years in one direction, resulting in something of a shift away from favoring government prosecutions in criminal cases, though the shift was never nearly as dramatic as some like to pretend.  That trend ran its course by the mid-1970’s.  We’ve been in the counter-trend ever since.

That fits, too.  Ten to fifteen years of tepid moving away from favoring the government followed by 40 years of ferocious government favoritism.  Par for the course.

But the whole Warren Court enterprise was not only a feeble effort in practical effect; it was also largely an intellectual failure.  We never really did get a good handle on the whole due process thing.  We never really improved upon notions of due process from decades before:

In the light, then, of these established rules and principles: that the due process of law guaranteed by the 14th Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States… to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a state on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the state, and  not merely a single step in those proceedings…

Frank v. Magnum, 237 US 309 (1915)


So when we “look beyond forms and inquire” what, precisely, is the basis for the inquiry?

Let’s not discuss the close cases.  Or rather, since maybe we can’t even tell what a ‘close’ case is, let’s look at a couple of cases 50 years apart and consider just one possible basis for an inquiry into whether “due process of law” has been observed in “…regard to substance of right…”; that is, does the scenario considered on the whole “shock the conscience”?

In Rochin v. California the SCOTUS found that a couple of cops acting without a warrant who apprehended a suspect in his home, took him to a hospital and had his stomach pumped to obtain the evidence of possession of illegal substances that he had swallowed shocked the conscience.  That was 1952.

In Chavez v. Martinez the SCOTUS found that the intensive interrogation of a suspect who was shot “several times” by police and who claimed to be in great pain and in danger of dying even as the interrogation proceeded did not shock the conscience.  That was 2003.  To be fair, Chavez was a plurality opinion and even within that group was something of a mess.  One of those cases where you can’t really be sure what it says.  It obviously gave the SCOTUS a good deal of difficulty, and despite the abundant verbiage and dissenting opinion by Justice Stevens, this one-liner by Justice Souter is actually explicitly designated the “opinion of the Court”:

Whether Martinez may pursue a claim of liability for a substantive due process violation is thus an issue that should be addressed on remand, along with the scope and merits of any such action that may be found open to him.


Justice Stevens – already by then I think the oldest member of the Court – thought the Chavez scenario amounted to obtaining a confession by torturous methods.  Which is to say, there’s quite possibly a generational perspective at work here.  Which is part of the point.

The other part of the point is that it’s hard to imagine a conscience that would be shocked by the Rochin scenario but not shocked by the Chavez scenario.  But one explanation is that “consciences” in 2003 were different from consciences in 1952.  We were very sensitive to torturous methods and forced medical procedures in 1952; less so in 2003.  At least if the subjects were accused criminals.

And it isn’t just the SCOTUS either; it’s us, because, as has been noted by my betters, SCOTUS is in many ways a reflection of what we are.  Or have become.


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