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 thisand 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?


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2 responses to “Rationalizing The Status Quo

  1. Joe Smith

    I think the answer to your final question is: It is, and that revolution is coming. I also think that might be extremely unfortunate, but it is what it is; GloboSatan is so out of touch with reality that they either can’t see it coming, or they don’t care. In fact, I believe it’s more the latter: that might just be the point, after all.

    The beginning of your post seems to me an instance of what I think of as the concept of inversion. Everything is inverted currently. It’s a modern secular thing — maybe it’s because they exclude God from their worldview a priori, so everything comes out upside-down. Justice is using state power to squash the little guy, progress is destroying a people and a nation, science is making unassailable claims and shouting down dissenters… etc.

    Finally, I see people like Robert Barnes talk about how the doctrine of standing is nothing more than a semi-legal patina coating a court’s desire to simply not hear a certain case. Often, I’m told, the same judge will have ruled diametrically opposite ways on standing in very similar circumstances — presumably based on nothing more than a plaintiff they either do or do not favor. What do you think about this idea of standing and how it’s applied in US courts? (I hope the question is sort-of on-topic in this thread.)


    • Hello, Joe.

      I think standing is a legitimate concept, sort of basic to the idea that we have a separation of powers and courts do not decide questions in the abstract because that’s what legislatures do. In some European countries it’s different. Their high courts sometimes issue “advisory” opinions, which our courts never do, or at least don’t admit they ever do.

      Does the standing idea get abused in practice? Of course. See today’s post for one of many examples where some plausible concept gets abused.

      Sometimes the disingenuousness is unavoidable, because you have an appellate court and there are judges who disagree and some compromise is reached.

      With respect to some of the recent litigation in the SCOTUS about the presidential election, I’m a little surprised that “standing” was the ground instead of “political question”, which is another way for a court to bow out and the more appropriate one here, I think, but I admit I haven’t studied the matter in any depth.

      Thanks for the comment!


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