Who Could Possibly Know…

whether a $60 million pain and suffering award was “too much” and needed to be cut in half?

The Appellate Division, First Department. That’s who.

It’s a lot of money either way, of course. At least, in context it is.

But we’ll just say here what we have said before: there is no principled reason why the appellate court should adjust the jury’s award at all. There are only unprincipled reasons, such as we can’t have municipalities or insurance companies being forced to make such big payouts to the rabble.

Alas, we are once again repeating ourselves.

Ugh.

Cause And Effect

We’re in deep, deep trouble.

Don’t know how we missed this. Except, well, we’ve been busy.

Causation, in the larger sense, is a subject for philosophy, not the law. We have determined at long last, and contrary to our impression growing up and consequently through a large portion of our adulthood, that lawyers and judges as a group are intellectually ill-equipped for any nuanced and honest analysis of any topic with any degree of subtlety. This is probably because the bulk of them were intellectually framed by being political science majors in college.

The idea of “proximate cause” – primarily a negligence concept – is okay for lawyers and judges because it is a greatly simplified version of the idea of causation generally. Beyond that they dare not go.

But then they do. Thus the trouble we are in.

So in Frost we have lots of discussion about due process and deliberate lying and cheating by a police officer or police officers and the majority finds that there was causation or at least that there could be causation:

Second, defendants miss the mark in their assessment that Frost has not raised a triable issue regarding causation. As we have explained, a “prosecutor’s decision to pursue charges rather than to dismiss [a] complaint without further action[] may depend on the prosecutor’s . . . assessment[] of the strength of the case, which in turn may be critically influenced by fabricated evidence…Here, a reasonable jury could have found that Vega’s identification “critically influenced” the decision to prosecute Frost. 

We need not enter into a hypothetical discussion about what a prosecutor might or might not do if we understand that deliberate lying and cheating by a government actor corrupts the process itself, the very thing that we call “due process” and the very thing that a criminal defendant is constitutionally entitled to.

This winds up being another excuse to cabin or limit the Mooney line of cases by requiring a showing of “causation” tied to some specific act by a government actor that is more concrete than simply recognizing that the corruption of the process due to government dishonesty is sufficient by itself to amount to a fatal constitutional infirmity.

This is a much simpler way of looking at it, but it’s also more subtle, and for that reason lawyers and judges are bound to screw it up.

Indeed, this intellectual deficiency is demonstrated not only by the majority opinion but also by Judge Kearse in dissent:

But this recognition of the actual pretrial focus of Frost’s claimed deprivation of liberty highlights my doctrinal difficulty with the majority’s reinstatement of Frost’s so-called fair-trial claim…The manufacture of false evidence, in and of itself, . . . does not impair anyone’s liberty, and therefore does not impair anyone’s constitutional right.”

Well, this is the issue, isn’t it?

Our position that this latter assertion is wrong; that is, that the manufacture of false evidence, in and of itself, does constitute a deprivation of due process simpliciter, by corrupting the process itself, whether or not anyone’s “liberty” is impaired by imprisonment or pre-trial detention or whatnot.

What is most worrisome about Frost, though, is that it’s attracting the attention of the SCOTUS, having received a “Response requested” and now a relist. This may be just reflexively favoring the government as the SCOTUS is wont to do (the government is the Petitioner). But maybe not, too.

We will be keeping our eyes on this one.

Ugh.

The Election Of The President

At some point someone has to say something. Might as well be us.

There’s a website characterized as “far right” on Widipedia called “The Gateway Pundit” (“GP”)

GP reports that there was a “rally” yesterday in Georgia presided over by former President Trump that featured a “massive crowd”. Is this true? GP says it is true. Regular media outlets such as CNN do not mention it, so presumably they don’t deny it.

As we’ve said many times, we don’t even like Trump. We think it’s unfortunate he ever was POTUS. And now we’d like him to just fade into history, like a lot of people prefer, and like most presidents before him promptly did once someone else takes over the helm.

But…..

A former president conducting “rallies” where thousands of people appear is, unquestionably, a news worthy event. So it’s bizarre that it’s not being reported on by the mainstream media (“MSM”). People should get some information about such rallies, such as….what is this rally about? Is it about a 2024 run by Trump? Is it about challenging the validity and legitimacy of the 2020 election? Both? Neither?

We suspect the cause for a rally would have to be the latter – that is, challenging the legitimacy of the 2020 election. Why not simply report this?

The MSM apparently holds the position that challenging the results of the 2020 election is somehow out of the bounds of civil discourse. Is this an arguable position?

No.

Take a look at Title 52 of the U.S. Code, Chapter 207. Records of federal presidential elections are to be retained for 22 months. Willful concealment or destruction of such records is a misdemeanor, which is surprising considering all the things that are federal felonies.

Why would there be a law providing that records of elections must be retained for 22 months? Obviously, so that in that period they can be inspected. Why would anyone want to inspect them? Because they are disputing the legitimacy of the election outcome. Is this, arguably, a threat to democracy?

No. That is not even arguable. Yet this is the predominant MSM position, upon which they are basing their coverage, or lack thereof, of those who are making such disputes.

Once again, it occurs to us that Trump is not the threat to the Republic that all the press shrieking has alluded to ever since he was elected. Indeed, the Republic by all appearances has already survived the Trumpian menace, which was never as important as it was made to seem.

But an incoherent, shrieking and ultimately untrustworthy press is a threat to the Republic, which is why the press was singled out for protection in the 1st amendment in the first place. Much of the press complains about “conspiracy theories” that run rampant and unchecked on social media, but the often wild speculations – and particularly their popularity – are the natural result of a loss of confidence in our regular news reporting. The MSM complains about it, in other words, but they brought it on themselves.

And the rest of us.

Just as the legal profession has failed and caused the collapse of the third branch of government, so has the journalism profession failed the so-called 4th branch.

How’s the third branch doing these days? A bit over-defensive, it seems:

“If Roe is overruled,” the law clerk wrote, “the public will understand that the Court’s reversal is explainable solely by reason of changes in the composition of the Court.” Thus, he concluded: “The damage to the public understanding of the Court’s decisions as neutral expositions of the law … would be incalculable…”

By the way, when those two pillars of civil society (i.e., the third and fourth branches of government) have fallen the government has already collapsed. The rest is just watching it pan out. It’s not something that is going to happen – it has already happened.

Those are our thoughts this morning. Ugh.

Finally

Someone, other than us, points out that the SCOTUS really shouldn’t be getting a pass.

Although it isn’t just SCOTUS favoritism to the police that poses a threat to the Republic, as it were. As if we had anything even remotely resembling a Republic or a democracy at this point here in the USA.

SCOTUS is just relentlessly establishmentarian across the board. Somehow, with all the federal government overreach since the 1930’s, SCOTUS finally decides to put its foot down so that people – including children – can be evicted and made homeless. It’s not that we even disagree with the principle here at LoS. It’s that principle has nothing to do with it.

The threat of homelessness is an essential ingredient of the status quo, the “status quo” being more or less a modern version of serfdom. We went over this a couple of years ago, to the usual effect – which is to say none.

We have lost our capacity for self-government. Or, it’s been taken from us. Maybe it was never all it was cracked up to be anyway.

Fiat Justitia..

ruat caelum.

“Let justice be done though the heavens fall.”

Being a judge can be a very easy job, or a very difficult one, but when it’s difficult it’s not difficult in the usual way. That is, it’s not difficult due to arduousness, or long hours. No, being a judge can be difficult when it requires moral courage, one of the four cardinal virtues of antiquity.

The Latin adage is interesting from that standpoint. Most cases are routine – by definition, we guess – and the judge doesn’t really do any of the work; rather, he reviews the work of others and his job is to make the decision. But sometimes the case is not routine – again, by definition – and what this means in practice is that the party who would be normally expected to prevail (government, bank, insurance company) should lose.

The operative word being should.

Unsurprisingly, the party that is normally expected to prevail – well – expects to prevail. When those expectations are unfulfilled “the heavens fall”. That’s the idea, anyway.

Here’s an account of a judge who did his duty in just the way we are pondering this morning. Note that he did not go on to the usual conceptions of judicial greatness, becoming a federal appeals court judge or a United States Supreme Court Justice. Indeed, knowing full well that his decision in the Scottsboro Boys case would cost him the position he had, he made his decision anyway. He lived out the rest of his life in obscurity in rural Alabama as a farmer.

We hear nothing about Judge James Edwin Horton, just as we hear nothing about John Edland. Even as we can’t avoid hearing about Kim Kardashian.

We need to do better, in terms of the cardinal virtues, obviously. Especially the virtue of courage.

Today is Memorial Day, and we here in the US observe and commemorate the ultimate sacrifices of those servicemen who lost their lives in the military service of their country. We ourselves are a military veteran of the US Navy and we do take the observance seriously.

But this is a lawyers blog, and we put up this post this morning to make this connection: our war dead made their sacrifice for a country that promises justice. When lawyers and judges fail – or indeed often refuse – to do the hard work and (in particular for judges) make the hard decisions that cause the heavens to fall we dishonor and make futile their sacrifice. That is a terrible sin.

So this morning our request is that our colleagues on the bench and in the bar rededicate themselves to do justice though the heavens fall, to do their duty without fear or favor, as they swore they would at the beginning of their careers. And by doing so honor the sacrifices of the fallen, who died defending the civilization that depends upon lawyers and judges making the hard decisions when called upon.

Amen.

“Failed To Allege”…

There is absolutely no way in any sane universe that the Plaintiffs “failed to allege” sufficient facts to avoid a 12(b)(6) dismissal in this case, headlines and bylines and introductory paragraphs notwithstanding.

The linked article is behind a paywall, but neither you nor I have to read the article, nor do we have to spend our PACER capital looking up the actual decision.

The system has learned nothing from a year or more of social unrest. Here’s what happened in this case, and it can be gleaned from what little remains. Volkswagen and a few other German automakers were sued in a class action. They spent an enormous amount of money to hire Sullivan & Cromwell, perhaps the most “prestigious” law firm in New York City. Sullivan & Cromwell made an utterly bullshit, even embarrassing “argument” that the complaint should be dismissed on 12(b)(6) grounds. The judge granted the motion.

Arguments are cheap, but not when Sullivan & Cromwell makes them. Then they are very expensive and prevail, no matter how stupid they are.

The decision will be upheld on appeal to the CA2, if there even is an appeal. Because intermediate federal appeals courts are now “certiorari” courts, which ostensibly means that they only devote their “scarce resources” to important questions of law, but in practice what it really means is that District Court decisions throwing the rabble out of court will always be upheld, because we don’t spend our scarce resources on the rabble.

In other words, this is a purely class-based decision in favor of established, entrenched interests. It’s snobbery pretending to be a legal opinion. It’s the kind of increasingly common occurrence that in the long term is a threat to the courts as institutions because, as we have repeatedly noted, established and entrenched interests prevail without courts, so courts may as well be done away with. But since that is, by definition, the collapse of the government….

We’ve described all this before, in a similar context. Recently. Indeed we would not be surprised to learn that this Volkswagen decision is derived from the case we were reviewing there.

This cannot go on. The institutional momentum, mindless though it may be, is doubling down after a crisis that should have inspired some change. If all the courts ever do is rationalize the powerful prevailing over the weak, the lesson becomes power is everything and truth and justice are nothing. The weak learn the lesson and turn to rioting and other forms of violence. It’s the only logical approach, and we follow logic, ultimately, whether the courts do or not.

Oh yes, almost forgot. Here is the bio of the judge. She’s Hispanic, but she’s made her “career” by being an establishment shill. Former prosecutor. Political operative. Ivy Leaguer.

We’re beginning to think that not just prosecutors should be barred from judicial office, but Ivy Leaguers, too. The extent to which that is unthinkable is directly related to how hopeless the situation with our courts is.

Ugh. We are doomed.

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.

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.

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.

_________________________________________________________________________________________________

*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.

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………

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.

The “Baseless” Mantra

Justice Thomas thought the SCOTUS should hear the election cases they had declined to intervene in back when it mattered. So did Justices Alito and Gorsuch.

See here, beginning at page 25.

CNN takes its swipe a Justice Thomas here. USA Today has a screed here.

Same theme. Same word, even: “baseless”

Has any word ever been so overused in modern times? But then it appears they have to overuse it, because the allegations of election fraud are so obviously not baseless. Which is not to say that they are necessarily everything the claimants claim them to be. But they could be. And that question has been systematically evaded by the courts and shouted down by – well, what shall we call it at this point? – the internet-media establishment.

The reality is that any country claiming to be a “democracy” and depending upon elections for governmental legitimacy is vulnerable to fraudsters of various stripes seeking to “game the system to win, every single time”, which gaming will frequently, if not inevitably, devolve into fraud. Most of the time the fraud won’t be “material”, in the sense that it won’t affect the outcome. And Justice Thomas appears to acknowledge in the very dissent he is now criticized for that it appears this was the situation in the very case under review from which he was dissenting.

We’ll say this again: claims of election fraud – both state and federal – are fairly common. They are frequently litigated. On rare occasions the litigation can overturn the initial result. Indeed, the election rules themselves amount to an acknowledgment that election fraud will occur without the safeguards of those rules. There is nothing inherently implausible about alleging election fraud, it is not undermining democracy to make such allegations, and even 500 trillion repetitions of the word “baseless” will not change that.

We truly have arrived at a strange moment. Not because the 2020 election was exceedingly strange and likely involved widespread fraud, because that can be dealt with in the ordinary course. Rather, it is the ruthless suppression of dissent by our establishment, the cynical confidence that they can shout down and mantra-over reality and that the populace will acquiesce.

Ugh.

Judicial Assessment

It’s interesting to us that someone – anyone – is assessing the federal judiciary from the standpoint of what kind of lawyers, exactly, become these judges?

Scott Greenfield is on it. As is Doug Berman over at Sentencing Law and Policy.

An assessment is probably just as necessary for state court judges. But never mind.

One thing neither Greenfield nor Berman discuss – and which is quite important as well, we think – is the make up of the federal appellate judiciary, exclusive of the trial level District Courts. The federal appellate judiciary is less dominated by trial prosecutors but more dominated by academics and “lawyers” who have been strictly appellate advocates, of course mostly for the government. What has happened – and this is a fairly recent development, “recent” meaning over the last few decades – is that the federal appellate judiciary is composed of judges who have never tried a case, even for the government, to say nothing of representing an individual human being as opposed to some institution.

We have likened this to naming a naval officer Chief of Naval Operations (highest ranking official in the Navy) who has never had sea duty. In the Navy this would be unthinkable. In the legal profession it’s the way it is.

The effects of this are profound. And subtle. And very real. Books should be written.

Or at least a law review article or two.

We are also of the opinion that the perspective most needed on the bench – independence – is practically non-existent on the federal bench. The proposal to appoint more public defenders doesn’t help here: they get a government paycheck. In fact, the study prompting this discussion in the first place refers to attorneys in “private practice” but what that really means is someone who worked for a large firm. The lawyers with more of a bent for independence will have most likely avoided any government or big firm employment.

Then again this may be an impossible goal. Someone who values independence that much almost certainly doesn’t even want to be a federal judge. Or a judge of any kind.

As someone we used to know used to say: what a dilemma.

Ugh.

Random Thoughts

Incredible though it may seem, sometimes we are too tame in our commentary, and it seems we should revisit this or that subject.

Like the horrendous state of our judiciary in general, and all too frequently the SCOTUS in particular as well.

The new Biden administration has floated the idea of SCOTUS “reform”. Whether this involves anything more than an updated court packing plan, well we don’t know. We are basically skeptical of anything calling itself reform. It’s like a crude propaganda device.

Speaking of crude propaganda devices, there’s this from the New York Times, via Yahoo News. Hyperbole should be reserved for propositions that are not debatable. When it is not so reserved it takes on the air of psychopathic ranting. Or heavy handed propaganda, to the extent the two can be distinguished.

Trump “attempted to subvert American democracy with a lie”. He was “enabled”, a psychobabble term (h/t Rush Limbaugh) by “conspiracy minded lawyers”. He waged an “extra legal campaign”, although it apparently involved presenting claims in courts.

“It is most likely that the court [SCOTUS] will deny this in one sentence,” North Dakota’s deputy solicitor general, James E. Nicolai, wrote in an email to his boss.

Sounds like a bold prediction indeed, until one is informed that the SCOTUS denies 99% or more of everything brought to it in one sentence, a little tidbit the propaganda piece New York Times article does not mention.

Supporters of Trump, we are told, have been “banned from Fox News for lies” or are “disgraced”.

Meanwhile we are reliably informed that Trump engaged in “daily tirades” and “subversive maneuvers”. This was all an “open attack on the democratic system”.

Sheesh. We don’t even like Trump around here, but we feel like jumping to his defense anyway, until we reflect and remember that no defense is rationally required for primitive screeds, even if they are printed in the New York Times.

We recall some revealing things from court opinions that we have had occasion to consider before:

At one point in 2014 we were discussing a SCOTUS case from 1998, Calderon v. Thompson, and its reference to the seemingly prohibitive and “profound societal costs” of federal habeas corpus. We noted at the time that there are equally profound societal costs to wrongful convictions. But we should have made the point more forcefully. A discussion of “societal costs” in criminal matters that does not mention wrongful convictions is “profound” in its own way: profoundly biased and unbalanced.

We had another example in 2016 where we brought up the 7th Circuit’s Judge Easterbrook for a – speaking of things “profound” – a profound self contradiction practically within the same page of his opinion in Buckley v. Fitzsimmons, Judge Easterbrook no sooner gets done admiring the efficiency and reliability of criminal trials to fix criminal liability than he bemoans the inefficiency and unreliability of civil trials to fix civil liability.

Do you think SCOTUS “reform” from the Biden administration will address this impoverished perspective problem? SJ seems to believe there may be a move afoot to “broaden the pool” from which federal judges are selected.

Maybe. We’ll see.