Monthly Archives: June 2015

Magna Carta: Happy 800th Birthday. Hooray for Greece.

June 15, 1215.  It’s nice that we can be so precise about a date so long ago, although maybe we’re deluding ourselves on that point.

No matter. It’s still June 15th, Julian or Gregorian. We can only do so much for accuracy’s sake.

In other news, Greece continues to lead the west in its most fundamental realities, and this time the reality may (we can only hope) involve throwing off the yoke of odious and probably even phony debt concocted by various interests in Brussels, London and Washington.

I think the Greek Prime Minister is right:

In his first public comments since the talks broke down, Prime Minister Alexis Tsipras on Monday said Greece would wait for its creditors to become more realistic and accused them of making unreasonable demands for political ends.

“One can only see a political purposefulness in the insistence of creditors on new cuts in pensions after five years of looting under the bailouts,” Tsipras said in a statement to Greek newspaper Ton Syntakton.

“We will await patiently until the institutions accede to realism,” he said. “We do not have the right to bury European democracy at the place where it was born.”

Is a “Grexit” in the offing?  Maybe, maybe not:

Greece’s Finance Minister Yanis Varoufakis retorted in an interview with Germany’s Bild newspaper that it was possible to reach a deal quickly if Chancellor Angela Merkel took part in the talks. He also ruled out the chance of a “Grexit” because it was not a sensible solution.

We’re with the Greeks on this.  As we so often are.

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Nino Scalia And His Elites

Oh, the irony.  Turns out the defendant in Justice Scalia’s poster child case for the death penalty:

The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional — for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!

is – well – innocent.  Gamso’s all over it, of course.  As he should be.

Nino’s not our Bete Noire over here at Lawyers on Strike.  We often agree with Nino.  But then we have some serious disagreements, too.

A couple of large topics beyond that are in play here, though.

First is the death penalty.  We don’t care for it, but Nino happens to be correct – absolutely, unarguably correct – that there’s nothing unconstitutional about it.  At least not now.  The constitution could be amended to make the death penalty unconstitutional, of course, but the population at large has to do that, not justices of the Supreme Court.

So to that extent, we agree with Nino.

But there’s something else going on here that we find more troubling.  A few news outlets here and there have noted how Nino’s rhetorical flourishes went embarrassingly wide the mark here, but the reaction has been muted.

We’ll hazard a guess as to why that might be the case: Nino’s “credentials” are beyond reproach.  He went to the right law school, did well there academically, and pretty much followed the standard, approved, and privileged “career path” all the way to his current high perch.  He and other members of the elite may disagree about some things, but in the most important matter of all – who’s in the club – there is no disagreement whatsoever.

A lot rides on such credentials being revered, and nothing undermines the starry-eyed reverence for them more than an episode where the man who possesses them is shown to be flagrantly wrong.  Harvard sits on a $32 billion “endowment” that is grounded in its supposed ability to identify and produce the “best and the brightest”.  But a few examples of these best and brightest being flagrantly wrong could eat into the (over) confidence that is embodied in that over-sized nest egg.

Thus, trumpeting Nino’s flagrant error doesn’t harm just Nino’s reputation; it also harms Harvard’s reputation. So it’s not just about Nino.  He has his enemies among the elite, but they’re not in the habit of cutting off their noses to spite their faces.  If they could find some personal peccadillo to tar Nino with, I’m sure they would.  Pointing out a flagrant professional error, however, undermines the mythology that credentials assure brilliance, and every Harvard graduate’s livelihood – not to mention often overblown self image – depends on that mythology.

Of course Nino doesn’t make just flagrant factual errors; he makes flagrant legal errors, too.  We have been constrained to point this out before.

We don’t fault Nino terribly for this particular legal error even though a good argument can be made that it has personally cost us dearly.  Yet it is a fairly stupid – and fairly revealing – error, because it means that not only Nino but several generations of his law clerks, all of whom have credentials rivaling his own, have never read Pyle v. Kansas.  Or if they did, they did not understand it, which in itself is something because there’s nothing terribly difficult about understanding that case.

How vigilant and defensive the elites have to be to protect and preserve a credential mythology they must themselves believe to be quite fragile.  Otherwise, why be so defensive about it?

And our press persons are slaves to the same mythology.

Credentials don’t make truth, though.  Motto notwithstanding, Harvard gets no monopoly.  But so many have a vested interest in pretending otherwise that a great “gotcha” story about Nino gets little play in the Washington and New York media centers.

Ugh.

 

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The Government Wins

Yet another installment of gross favoritism by the SCOTUS to the government; but this time, we’re not the only ones noticing:

But what does a qualified-immunity summary reversal accomplish? It doesn’t develop or clarify the legal standard either for qualified immunity or for the substantive constitutional right (at least, not as it stands today). And it seems out of step with the Court’s general practice, stated in its rules, that certiorari is “rarely granted when the asserted error consists of … the misapplication of a properly stated rule of law.”

Indeed, as the SCOTUS often points out in denying review to the plebeians:  the SCOTUS is not a “court of error”.  Shit happens in the courts below, and if we tried to correct everything we’d never be able to sit for our portraits for lack of time.

But the SCOTUS blog article actually broaches a previously prohibited topic when it analyzes a little further:

One of two things appears to be happening…The other possibility is that, in occasional cases, the Justices can’t resist stepping in when they think a case has been wrongly decided – in the same manner that the Justices summarily reverse other types of cases, particularly (though not exclusively) grants of habeas corpus  [ED. NOTE: a grant of habeas corpus is always a ruling against the government] …if the second [i.e., this] theory is correct, wouldn’t we see dissents expressing concern that the Court is engaging in what appears to be freewheeling error-correction in favor of government defendants? One possible answer is that the impulse to correct certain errors is shared by the entire Court, although – given the controversy that civil rights cases often attract – such unanimity would be unusual.

Apparently the answer is “no” – we wouldn’t see such dissents.  The problem here is that “unanimity” is not at all “unusual” – in favor of the government, and as the SCOTUS blog article points out, such unanimity can also be found in another kind of case whenever the government loses in the courts below.  The common thread in “unanimity” being, then, not what type of case it is or any kind of rule of procedure or law, but rather whose ox is being gored.

This is not the rule of law, but rather its opposite.

The case the SCOTUS blog article is discussing seems all the more egregious when one considers that the whole immunity doctrine is made up by judges to favor the government in the first place.  The statute involved (42 U.S.C. 1983) is effectively eviscerated by the judge made immunity doctrine:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

Essentially, only people who are officials of state governments can be “persons” within the meaning of this statute; thus they are the only people who can be held liable at all.  But the SCOTUS – invented immunity doctrine says that these same people are immune from being held liable – every single one of them, the only question being whether they are absolutely immune or “qualifiedly” immune.  Isn’t that a neat trick?

So the SCOTUS favors the government in devising the immunity doctrine to make verdicts against government actors rare, and then favors them again by intervening when they think one of those rare instances has been an error, when they wouldn’t do the same for any other kind of litigant.

Got the picture? The fish rots from the head.

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