Hiding in the Shadow Docket

 

The increasingly pitiful Supreme Court of our nation has, since the installation of the current regime, been busy accepting an extraordinary number of "emergency applications" it's made and duly issuing the orders it's requested.  It's a most compliant court.

Because such applications are, supposedly, to be made and accepted only in emergency situations where briefing, oral argument and written opinions as in normal cases would take too long and so fail to timely address the emergency, orders granting or denying the applications need not be explained.  No written opinion or rationale need be provided.  The Justices, like gods, merely decree.  We're not entitled to know why or how they came to do so.

These Jovian orders comprise what is known as the shadow docket.  While there have in the past been very few matters decided in this abrupt, mysterious manner, the current Justices seem to delight in exercising judicial authority in this fashion. Yay or nay is all they need say.

No doubt it's much easier to decide cases when no reasons for a decision need be given.  And, certainly, it can be convenient in other ways as well.  For example, if a case raising similar issues in similar circumstances should come before the Court, but a majority of the Justices don't want to issue the same order issued during the "emergency", they can simply maintain that the rationale which applied but was not disclosed previously didn't apply in the new matter.  Who could contest such a claim?

Better yet for them, how may the Justices be successfully criticized for a decision they made when the reasons for the decision cannot be known? It may have been made for the worst of reasons, or no reason at all, for all we know.  It simply doesn't matter.

Do the Justices lurking in the shadow docket feel something of a thrill, being able to make unreviewable orders as they please, with no need to account for them?  If so, let's hope they don't find it addictive.

Of course these decisions made in the shadows of the shadow docket do little or worse for litigants, lawyers and judges, trying to understand them. They benefit only the regime and the Justices who cater to it. Lower courts, lawyers and litigants are left in the dark because the Justices cannot be bothered to explain the orders they make.  Merely knowing that an application has been granted or denied provides little guidance.

This deliberate practice of issuing orders for no apparent reason is at the least irresponsible and selfish.  It's also cowardly, I think.  If your going to decide matters of great importance which are unreviewable, you should have the courage to explain and defend those decisions.  It's no wonder the reputation of the Supreme Court is in decline.

The First Felon

 

For the first time in its history, our Great Republic will shortly have a convicted felon as its President.  Somewhat surprisingly given that some of its members have shown themselves to be susceptible to influence and contemptuous of generally recognized maxims of judicial conduct, the Supreme Court rejected his effort to postpone his sentencing.  There was no legal basis for doing so, but it has become uncertain that the Supreme Court finds a legal basis for its decisions necessary in these dark times.

But he's a duly elected convicted felon, and if we're to allow, if not encourage, felons to hold even the highest of public offices, then that is the way of our nation, now.  It may be the case that we'll balk at electing certain felons, I suppose.  Perhaps electing a convicted murderer is something the public will decline to do, for example.  But the field is open, now; the race is on.  Who will be the next convicted felon to grace the office of the Presidency?

It's difficult to be the first, in this case.  Perhaps that's why there was a struggle to avoid having that distinction when he became President.  Now, though, he may be a portent of things to come; a pioneer.  The first felon of many.

Ultimately, of course, electing anyone to any office in our Glorious Union is more than anything a matter of money.  Influencing those elected is a matter of money as well.  Witness the wealthy of our nation rushing to "donate" millions to finance the inauguration.  What is planned?  One wonders.  As there seems to be no limit to the vulgarity of our politics, it's hard not to imagine a kind of combination Vegas show, circus, and displays of military might given the rhetoric which flourishes at this time.  When, though, has a "negotiation" to acquire lands included the threat or use of armed force unless the  lands are transferred?

Interested though I am in the history of ancient Rome, I'm not fond of comparisons between it and the United States.  But I can't help but think of what Plutarch is said to have written regarding the influence of money on the Roman state.  It began to determine what votes were made, who was elected, what they did; then it took over the law courts; then the legions; and then came the rule of Emperors.

I'm not certain about the military, but it seems our elections and elected leaders have succumbed to the wealthy and certain plutocrats in particular, and the law courts, including the highest court in the land, are more and more beholden.  Emperors we may not have, yet.  But we don't seem to have many qualms about those who rule us.  So, who knows?

The Disesteemed Court

They saved their worst for last.  Though it seems hard to believe given the quality of some of their earlier decisions this term, the majority of the Justices left to the end three of the more stunning opinions issued by an increasingly demeaned institution--those regarding presidential immunity, federal administrative law and what are called "bump stocks."

The majority opinions in these cases seem to be contrived.  That is to say, they appear to have been prepared not through a process of reasoning, but instead in support of a desired result.  The rationales employed strike me as examples of special pleading.  The Justices making up the majority agree on an end to be achieved, and direct their clerks (who do the bulk of the research and writing) to find caselaw and, where necessary, other authority supporting that end.  This is something lawyers do all the time, of course, in the service of clients.  But while one is justified in expecting that the Justices, or at least their clerks, are familiar with the law and what lawyers do (which may be wishful thinking in some cases), there's also an expectation that they will transcend special pleading and make an impartial decision, not one that is consistent with their belief of what is appropriate.  

But more and more we see a court filled with unabashed ideologues and toadies of the wealthy and special interests which appeal to their vanity and, it's sad to say, their expectation of rewards. They feel entitled to reward for having been placed in a position which promises to them perpetual employment in an exalted position which many of the well-to-do see as rendering them very useful to their quest to become even more well-to-do and powerful.

Immunity from criminal prosecution isn't something to be easily and broadly granted to public servants.  Even in the time of the Roman Republic, officials and magistrates were immune only during their term of office.  Once that term expired or was otherwise terminated, they could be prosecuted for their actions taken while, e.g. consul or governor.  During the Republic, private citizens could bring prosecutions.  A Roman magistrate was thus much more exposed to prosecution than any official could be now.  

The fact that no former president has been subject to prosecution until now indicates that this isn't something that is likely to occur, so it's difficult to understand why the need for immunity is pressing or why it should be of such a concern.  Just what is it that a president could do which requires the protection of absolute immunity from prosecution?  In what way would the possibility of prosecution hinder a president?  A case in which a former president is prosecuted for electoral fraud, or for mishandling classified documents doesn't raise concerns that prosecutions for the performance of official or significant acts will be forthcoming.  A prosecution for encouraging a riot or insurrection is similarly one which we may expect not to arise often.

It's true that presidents are not protected in the case of unofficial duties by reason of the recent decision, but there is nothing in our history or in the law which indicates absolute immunity for "official" action was ever contemplated by the Founders or anyone else.  That is characteristic protection of a monarch or autocrat, something those who established this nation sought to avoid.  And if, as must be acknowledged, the president has an obligation to enforce the laws of the United States, and preserve, protect and defend its Constitution, how would it be possible for a president to be immune from conduct contrary to those laws or the Constitution?  Such conduct could easily be described as "official" however according to the majority opinion, if it involved making use of the authority of the office of the president.

Requiring lower courts to determine what is or is not official assures that the law in this respect will be uncertain and confused until such time as the Supreme Court itself takes on the burden it refuses to take on now, but instead foists on others.  It is a recipe for chaos.  Having created such a standard, it seems cowardly to leave it to others to determine its meaning and consequences.

The majority's opinion in the Chevron case, considered in combination with the Trump case, suggests that it has little regard for the lower courts which must now cope with the problems which will result.  District Courts will now have to grapple with cases which normally would be handled by the agencies themselves or administrative tribunals.  District Courts are overwhelmed by litigation already; what will happen to them now is anyone's guess.  It would be interesting to determine whether the current Justices have any experience in the actual litigation of cases in court, or any appreciation of the time and expense required to obtain a decision.

The bump stock case represents a kind of exaltation of minutia, a focus on definition over all else which is an expression of the Court's increasing detachment from the reality of life in the United States.  The Justices have become monks of sorts.  They sit secure and isolated in the Court, which has become a kind of monastery in which they and their clerks and staff peruse scriptures and commentaries, issuing bans and proclamations which rule our lives, without concern for the consequences. 

 

Ideology, Morality and the Law

I've been a lawyer for many years.  A practicing lawyer has little time to devote to a review of the status of the law in general, being concerned with its application to certain circumstances.  So, my focus on the law and the legal system has usually been narrow--what law applies to a given matter, what does it say, how is it to the advantage or disadvantage of the client, is the judge experienced with such cases?

In order for the status of the law or legal system in general to rouse the concern of the practicing lawyer, some significant event must take place which "shocks the conscience" of an attorney.  That's a legal phrase used for the most part to refer to something egregious which provokes someone or something, usually a court, to call for or provide a remedy.  

It may be that the technology of our times, which allows for the communication of information and opinions instantly and in a ubiquitous fashion, brings such events to our attention more frequently than in the past, but I think that there are more and more instances of conduct on the part of lawyers and judges that shock the conscience than there have been in the past.

Consider the many lawyers who pursued baseless claims of fraud related to the 2020 election.  Consider the conduct of Justices of the Supreme Court which have been mentioned in this blog, news of which seems to appear on almost a daily basis, which raise questions of ethics and impartiality.  Consider the actions of a novice Federal District Court Judge ignoring the recommendations of senior judges that she should recuse herself from a matter in which the defendant appointed her to the federal bench, and the eagerness with which she delays the trial of the matter to the benefit of the defendant.  

Unfortunately, it's likely that corruption based on financial inducement has always been a feature of the legal system.  The extent of that corruption varies with time and place, but it would be foolish to think it has never been a factor.  It's also likely that the legal system benefits the rich and powerful more than it does others, and has always done so.

But I don't recall ideology (including religious ideology) playing so large and obvious a part in the law while I've been a lawyer, until lately.  There were complaints aplenty by conservatives regarding liberal judges, particularly during the 1960s, but ideology then wasn't broadcast, and indeed flaunted, like it is now. I suspect this is the case because the law is being treated by some of us more and more as enforcing and imposing a religious code of conduct, or at least one which purports to impose moral standards by law.  When that isn't expressly stated to be the motivation behind laws and legal decisions, those political agents perceived to favor particular moral standards are favored by them.

More and more we see reference made by legislators and judges to religion, and most especially the Christian religion.  Most recently, the State of Louisiana, admittedly never known for its tolerance or respect of minorities or their opinions in most instances, required by law that the Ten Commandments be displayed (if not brandished) in every public school room.  As noted elsewhere in this blog, a Supreme Court Justice has said he considers the function of the law to return the nation to godliness.  The Chief Justice of the Alabama Supreme Court justified a 19th century law banning abortion on the fact that the people of that State justly feared the wrath of God.  

H.L. Mencken, the legendary Sage of Baltimore, noted in the quote appearing atop this post that whoever attempts to impose moral conduct on others through the law is most likely a scoundrel.  I think this is true.  Those who claim that the law should be used to impose morality, I would maintain, don't do so because they wish to promote morality, but because they seek to impose rules which favor them, their beliefs, their property, their power, and control the conduct of others who may threaten them--including that of their children.  

History is full of moral hypocrisy; the self-proclaimed holy and self-righteous who are found to violate the code of conduct they claim should apply to humanity in general are common.  But the corrupt won't hesitate to question the morality of those who stand in their way or disagree with them.  

So the statements made by legislators and judges are more and more essentially a shrill condemnation of conduct they oppose on moral grounds, rather than a reasoned consideration of the rules of law and the circumstances, and the civil rights of others.  

 

Poor, Poor Pitiful US(A)

Demagogues have been the subjects of contempt since ancient times.  But as worthy as they are of disdain, and as able as they may be in persuading those who follow them, we shouldn't neglect to note that those that do are themselves pitiful creatures at best, and despicable at their worst.

Consider the reaction of the myrmidons and lackeys of the most prominent demagogue of our times to his recent conviction after a long jury trial.  His own reaction is predictably self-pitying, whiny and hyperbolic, so dully repetitive in its wild and baseless claims that it can't even qualify as outrageous, and is more rightly considered monotonous.  Their reaction, though is staggeringly craven, imbecilic, malicious and irresponsible.

Base self-interest may motivate the miserable politicians and media personalities who "assume the position" whenever he's near them and repeat his claims slavishly.  They're shameless in their pandering, even to the point of dressing as he does as we've seen--blue suits, white shirts, red ties (and of course brown noses).  They resemble the small duplicates Snow Miser and Heat Miser from The Year Without a Santa Claus. One would think that if they had any responsibility and intelligence they'd recognize their condemnation of the entire justice system can undermine our system of government, or even if they're entirely self-interested they'd at least know that in other circumstances such a view could endanger themselves.  Those whose worship of him isn't founded on self-interest and greed combined with cowardice, though, are more disturbing and alarming.

It's difficult to understand their fascination with someone who is so completely a fraud and lacking in charisma (unless a caricature of a used car salesman can be said to be charismatic).  How is it that they believe whatever he says, regardless of the fact that he never provides evidence in support of his claims?  How can they have become so invested in someone who is so self-absorbed, who considers only his own interests to the exclusion of others, as to call those who oppose him traitors?  Are they so gullible...so stupid...as to associate him with the good of the country?

It's been noted already by many that his followers resemble cult members.  I'm unfamiliar with the psychology of such people.  I would think they must be fearful, ignorant, needy, angry, irrational, easily led and dread the need to think, but beyond that I can't guess what manner of phobias or neuroses plague them.  But like the followers of such as the Reverend Jim Jones, David Koresh, Charles Manson and the fellow who was the leader of the Heaven's Gate cult (I can't remember his name) they present a danger to themselves and others.  

I don't know whether a cult in that sense exists in this case, but unthinking adherence to a sociopathic individual is perilous.  

We get the president we deserve, I think.  We get the government we deserve.  If we now think an autocracy of sorts is desirable, we're going to get it.  It would be a sad end to a remarkable nation created by remarkable men and women, though; a truly experimental effort to create a government that would secure most civil liberties and yet function in a manner as to dominate the world in many respects for many years.  Now it appears that most of us want to be dominated by someone else.  Not another nation, of course, but to be dominated by someone we're eager to worship.

Supremely Inappropriate

Not content with blaming his wife for one instance of dubious use of a flag associated with an insurrection at an Alito residence, the resourceful Justice has blamed her for another at a different Alito property.  That would be the second time he's thrown her under the bus in response to requests that he recuse himself from cases involving this incident, but not content with this misdirection he's done it yet again in his curious written response to those requests, solemnly (and unsurprisingly) declaring he need not--and indeed cannot--do so.

The notion of a judge having a duty not to recuse is one I find quite odd.  The duties a judge would have in response to a request would, I think, be to the parties involved in the case.  Justice Alito seems to think he has a duty apart from them--a duty to decide, although he's accused of bias or at least he appearance of it; indeed, perhaps because he has been so accused, and has decided himself (as he's allowed to do under the Supreme Court's unenforceable "code of ethics") that he cannot be accused of bias and is (and presumably--hopefully?-will be) impartial.

The truisms he employs in explaining he won't recuse himself are so off point it's difficult to believe he resorts to them.  Nobody has claimed his wife isn't a person, or an individual.  No one doubts she has her own opinions.  The fact she has flown other flags is neither relevant nor interesting.  The concept of joint ownership of property is well known.  No one thinks she has no right to fly a flag.  No one thinks she has no First Amendment rights.  No one doubts she was called bad things by others, nor is it maintained that neighbors did not exercise their own right to place signage on their property she found objectionable.

We may take Alito at his word that he wasn't involved in raising/flying the flags.

None of this is pertinent, and one would like to think that a Justice of the Supreme Court has the wits needed to know that's the case.  None of this is pertinent because the issue is whether, even under the toothless code which "applies," his impartiality may reasonably questioned.  Impartiality may reasonably be questioned regardless of whether it is or can be established.

Everyday people governed by codes of ethics must grapple with the question whether what they do creates the appearance of impropriety.  There's nothing unusual about this.  In most cases, honorable people feel, rightly, that when called upon to decide or participate in a decision involving their spouses professed beliefs and claims and whether they are valid or invalid, an appearance of impropriety exists.  This is because a spousal relationship is normally considered an unusually close one, in which spouses profoundly influence one another and share common interests and concerns.

Perhaps Justice Alito and his wife don't have such a relationship.  Perhaps he disdains her views, or pays no attention to what she thinks or does.  Even if that was the case, though, it would be reasonable for someone to think that they're a normal married couple, that they respect one another and know what each other do, at least in most cases.  Certainly, one would think, when it comes to flying flags over the home in which they live.

Assuming, then, what most would assume in the case of a marriage, i.e. that each partner will love, honor and respect their spouse, it's not at all unreasonable to expect that what one spouse publically declaims on matters in which the other is involved in deciding will influence the making of the decision, or will at least lead reasonable people to believe it will do so.  Pedantic recitation of each partner's individuality and legal rights isn't persuasive in such circumstances.  In fact, it seems disingenuous, and even dishonorable.

Supreme Court Justices seem to be doing a kind of ethical limbo dance.  How low can they go?

Under the Upside Down Flag (Alito Incognito)

It's said that displaying the picture of a Supreme Court Justice upside down is a sign of profound distress due to an emergency threatening the nation.  It may also be used as a symbol of protest.  This picture of Justice Alito was posted by here by someone.  I don't say it was me, but I take advantage of it to comment on the flying of the Stars and Stripes, Old Glory, The Grand Old Flag of our Glorious Republic, The Flag Of Our Fathers, upside down at his house  in January, 2021, contemporaneous with the insurrection effort of January 6 of that year and the silly "Stop the Steal" movement related to the 2020 election.

Justice Alito when confronted with proof that this took place promptly hurled his wife under the bus, and claimed that she had done it without his knowledge or consent.  He was, it seems, unaware of events taking place at his home and of the conduct of his wife, who as far as I know has neither confirmed nor denied his gallant claim.  Alito claims she treated our flag in such a fashion because of signs on display in the yards of certain of his neighbors, which we're to believe were so offensive as to merit this call for distress, or which otherwise required that she brandish her support for the claim the 2020 election was stolen in this fashion.

It's not a persuasive claim or explanation, I think.  The Justice has displayed an ignorance of women in general in the past, but it doesn't follow from this that he was, or is, ignorant of the thoughts and actions of his wife specifically.  Also, just why anyone would think flying the flag upside down is an appropriate response to nasty neighbors is unclear.  I can't help but wonder if this was Alito acting incognito; i.e. with his identity rather thinly concealed by the person of his wife.

If hanging the flag upside down was conduct in support of the "Stop the Steal" farce or was intended to express belief that the election had been stolen, it's remarkable that the spouse of a Supreme Court Justice would act in this fashion given that even at the time, as I recall, the claims made in that respect had been laughed out of courts throughout the nation.  One would think a belief in judicial impartiality and reserve would cause a reasonable person to question the basis for the assertions being made in court which various judges dismissed, and it may be expected that even the wife of a Supreme Court Justice would hold such a belief, if not the Justice himself.  But perhaps this isn't to be expected of either the Justice's wife or the Justice himself in this case.

We see at the Supreme Court as we see elsewhere in our politics and society a sense of disdain for lives different from ours and thoughts which are contrary to our own.  We also see self-righteousness of an extreme kind.  In politics and in an increasingly political judicial system, the expression of this self-righteousness is pharisaical.  

We know the Supreme Court Justices have recently refused to adopt a code of ethics similar to that which applies to other federal judges.  It seems they're serenely confidant that no such code need exist (it's to be hoped they don't think that ethics themselves are unneeded at the Supreme Court, but only in lesser courts).  We know also that another Justice and his wife have blithely accepted costly gifts from very rich friends and admirers, for the most part wealthy conservatives, and see nothing objectionable about this mooching on their part.  This kind of self-regard can be dangerous, as Supreme Court Justices, who have no term of office and whose decisions cannot be appealed, can come to think of themselves as truly supreme.

We can expect that neither Justice Thomas (whose wife supported claims of a fraudulent election) or Justice Alito will recuse themselves from cases involving the January 6th insurrection under the circumstances, of course.  

It's unsurprising that the reputation of the Supreme Court is diminishing.  Lawyers know judges better than most, and probably are no more impressed by the knowledge or characters of the current Justices than they are of most other judges of appellate courts.  They know there's nothing particularly laudable or admirable about them and their significance is simply in the power they wield.  But it strikes me that others are coming to know this as well.  Unfortunately, certain of the Justices seem bent on making certain that respect for the Court continues to dwindle.

The Arizona Supreme Court's Use and Abuse of Statutory Construction

 

By now, all know through the magic of modern media the opinion of the Arizona Supreme Court in the case of Planned Parenthood Arizona, et al v. Mayes, et al.  In that opinion it held that a law adopted in 1864, when Arizona was a mere territory, effectively making abortion a crime unless to prevent the death of the mother, is applicable here and now, some 160 years later.

It always disturbs me when a court reaches more than a century into the past to dispose of issues coming before it now.  I think that in many cases, what was the law then was adopted in circumstances so different from those pertaining now that it's applicability is suspect.  This attitude has made me feel embarrassed, often, whenever I've cited legal antiquities after a search reveals that they are the only authority supporting the position I take in a case.  I can't help but think that the court and opposing counsel will conclude that if they are all I can rely on, there is a problem with my argument.

Regardless, though, laws adopted long ago which haven't been expressly repealed or ruled invalid by a court remain.  They exist and are available in a court of law.  They may well be binding from the perspective of the law.  The law is rather like the Internet in that all our statements, decisions, rules and regulations incorporated into the law cannot be erased no matter how evil, unjust or foolish they seem now.  For example, there are laws prohibiting certain sexual acts between consenting adults and laws prohibiting adultery still out there, though for the most part unenforced.

The opinion is lengthy, and I can only review it in summary in this post.  However, review it I will and I think the review addresses the major points and arguments made.

Since the 1864 law (let's call it "Law 1") was adopted by the Territory of Arizona, the State of Arizona adopted a law (let's call it "Law 2") which in pertinent part states that except in the case of a medical emergency, an abortion may not be knowingly and intentionally performed if the probable gestational age of "the unborn human being" has been determined to be more than 15 weeks.  At issue was the question whether Law 1 or Law 2 applies at this time.  In other words, at issue was the question whether an abortion could be performed under Arizona law if it was performed at any time before the expiration of the 15 week period.

Because neither Law 2 nor anything else expressly repealed Law 1, it is our fate as it was the fate of the Arizona Supreme Court to consider the rules of statutory construction, as it was necessary to interpret Law 2 as related to Law 1.  A law adopted by a legislature is to be construed to say just what it says if its language is clear and unambiguous.  If it is, then construction is not required.  If a law is ambiguous, then recourse may be had to a number of other sources in interpreting it, including, e.g., legislative history (the proceedings of a legislature during the debate and adoption of the law).  Generally, a law is considered ambiguous if two reasonable persons would interpret it differently.

Neither Law 1 nor Law 2 strike me as ambiguous.  The majority of the Arizona court decided Law 2 was, however.  As I noted, it didn't expressly repeal Law 1.  However, it clearly stated that an abortion was prohibited when performed after 15 weeks, unless medically necessary.  It doesn't take much in the way of intelligence to infer from this that an abortion performed with the 15 week period is not prohibited.  If you think as I do and the plaintiffs in the case did, you would conclude that the law allowed abortions to take place within the 15 week period; in other words, that it authorized abortions during that period.   Someone could therefore have an abortion in that period under Arizona law without incurring any penalty under the law.

 The majority conceded this was a reasonable construction of Law 2.  However, it determined that there was another reasonable construction.  Law 2, according to the majority, could reasonably be interpreted merely to describe the circumstances in which a physician may or may not be penalized if an abortion is performed. There being two reasonable interpretations according to the majority, Law 2 was ambiguous.

The majority then looked to legislative history.  It decided from that history that Law 2 was adopted in response to the U.S. Supreme Court decision of Roe v. Wade.  It opined that the Arizona legislature only adopted Law 2 because it had to do so to avoid running afoul of that Supreme Court decision.  According to the majority, Arizona never really wanted there to be a right to abortion.  So, Law 2 can't be construed to that effect.  Also, Roe v. Wade now being overruled, Law 2 must be considered inapplicable and Law 1 thereby must be applicable.

It's clear that Law 2 must be deemed ambiguous in order for this opinion to have any basis.  But the grounds on which the majority decided it to be ambiguous strike me as decidedly unreasonable.  If a law says X may be done in certain circumstances, but may not be done in other circumstances, I'm at a loss to interpret it to say X may not be done in certain circumstances, and may not be done in other circumstances as well.  X is allowed, or authorized, in one case and prohibited in another. 

I'm uncertain whether the majority is contending that being allowed or authorized by law to engage in certain conduct doesn't mean one has a right to do so, or something else.  If the former, I don't know how to characterize a legal right except as providing that something may be done without incurring a governmental penalty.  Under Law 1, abortion was penalized in any circumstances if not needed to save the life of the mother.  Law 2 is clearly inconsistent with Law 1.  Law 1 had no effect after Law 2 was enacted.  This would seem to be an implied repeal.  The fact that there are statements which appear in the record that it isn't really intended to be a repeal, which the majority notes, doesn't detract from the plain language of Law 2.  The fact that Roe v. Wade was overturned does not render Law 2 invalid, which the majority seems to believe, as Dobbs doesn't hold that a law like Law 2 is unconstitutional.  So, it's necessary that Law 2 be repealed to be ineffective.

The sad lesson is that the rules of statutory construction, though useful, can be used to support more than one interpretation of the law.  In the end, a judgment must be made regarding when those rules can reasonably be applied.  The Arizona Supreme Court's determination that Law 2 is ambiguous seems to me to be contrary to a common sense reading of that law.  A real effort is required to construe it as saying abortion is not allowed in the first 15 weeks, and construing it to say merely that abortions will not be penalized in some circumstances would amount to codifying a decision not to enforce the law under certain circumstances.  

 

Dicta and Dictatorship

It seems to me that the majority of the current Justices of our Supreme Court are inclined to transcend, to put it kindly, the cases before them.  That is to say, they aren't afraid to do more than is required of them from the standpoint of the law, strictly speaking, but rather tend in addition to do and say what they nonetheless deem it appropriate for them to do and say.  This kind of conduct is something former, liberal, Justices were accused of by conservative commentators.  

Consider the recent decision regarding the action of the Colorado Supreme Court in disqualifying a candidate for the presidency from appearing on the ballot in that State under Section 3 of the Fourteenth Amendment.  That Section states that those who engage in an insurrection contrary to the oaths of office they took to the Federal and State constitutions are disqualified from running from such an office in the future.  SCOTUS struck the Colorado decision down.  All nine of the Justices thought it appropriate to do so, but some of them thought that the opinion could do so by simply holding that the States cannot enforce Section 3 except with respect to disqualification from State offices.  The opinion does much more than that.  It contains language indicating that Section 3 can be enforced only if Congress passes legislation providing for its enforcement.  In the late 19th and early 20th centuries, Congress passed legislation providing for the disqualification of non-legislative office holders and members of Congress.  No legislation has been passed regarding disqualification when it comes to the office of president, however.  The majority of the Justices apparently think such legislation is needed before such disqualification may be enforced.

Four of the Justices thought this additional language regarding the need for legislation to enforce Section 3 is the result of the court indulging in rendering an opinion, or commenting, on matters not necessary to the decision of the court.

In the wide, wonderful world of the law in our Great Republic, a distinction is made between language in caselaw which constitutes the holding of a court, and what is called dicta.  Generally speaking,  dicta is language in an opinion  which isn't necessary to resolve the case before the court.  It may be a comment, an observation, a suggestion, or mere declamation.   Because it isn't necessary to the holding of the court, and thus the resolution of the case, dicta need not be followed by other courts.  It doesn't create precedent.  It's merely persuasive, if anything.  What is precedent is the holding itself, and the reasoning needed to arrive at it.  To give that reasoning its lovely Latin name, the ratio decidendi.

It's important to determine whether statements in the opinion that Congressional legislation is required before there can be disqualification from the office of president is dicta or binding precedent.  Five of the Justices claim, in responses to the concurring opinions, that the statements are part of the reasoning required to strike down the action of the Colorado Supreme Court.  This doesn't mean it isn't dicta, however.

If it isn't dicta, then it appears that it's not yet possible for someone to be disqualified from the presidency.   There must be Congressional legislation before that can be done.  In the interim, Section 3 doesn't apply.  

It would seem the language of Section 3 is sufficiently clear that additional legislation, saying essentially the same thing, isn't needed for it to apply.   In fact, in taking the position that more legislation in effect parroting Section 3 is necessary the five Justices render Section 3 superfluous, contrary to rules of construction of statutory law.

More significant, though, is the fact that the Congressional legislation supposedly required may never be adopted.  So, nobody running for president may ever be disqualified from doing so by Section 3.  A candidate for president may engage in insurrection and not be disqualified under the Fourteenth Amendment, for now.

By requiring further legislation specific to the office of president, SCOTUS runs the risk of making the application of Section 3 to the presidency a political decision.  In the decadent state of our government, it's easy enough to envision members of Congress fearful of adopting such legislation because it may be used against their party's presidential candidates.

 In the decadent state of the law, a candidate for president, or one who wins the presidency, isn't disqualified by engaging in insurrection despite the clear language of Section 3 of the Fourteenth Amendment.  In the decadent state of our society, a candidate's supporters may engage in insurrection and it won't prevent the candidate from being president, even if the candidate encouraged it.

 

 

Oh, He Comes From Alabama With A Bible On His Knee

Once again, I'm unable to resist giving a silly title to a post.

A great deal is being written and said about the recent decision of the Alabama Supreme Court in the case of Burdick-Aysenne et al v. The Center for Reproductive Medicine, et al,  involving frozen human embryos.  This post relates to the opinion in that case, but not in any significant respect to the majority opinion, concurring opinion or that of the dissent.  Far more interesting to me is the "special concurrence" of the Chief Justice of that court.  

It's always fascinating to read court decisions which manage to "grab the headlines" for one reason or another (can we still use that phrase or is it too dated?).  Generally, the decisions themselves are different from the summaries or interpretations of them which appear in the major and social media.  This case was one for wrongful death and for negligence regarding the destruction of certain frozen embryos, or the killing of them as the court puts it.

Alabama law provides a cause of action for wrongful death including the death of children, born and unborn.  The primary legal issue addressed by the court was whether "unborn children" include frozen human embryos for purposes of the wrongful death law of the state.  The majority found that they are included among "unborn children."  And that was, or at least should have been, that.

Where I practice, there is no such thing as a "special concurrence."  For good reasons, I think.  A search reveals that it is an opinion of a member of the court which concurs with the decision of the majority, for entirely different reasons than those relied on by the majority.  Indeed, it need not really relate to the case itself.  It need not address any of the issues raised or addressed by the litigants or the lower courts from which appeal was made.

Simply put, it may be entirely gratuitous.  Normally, appellate judges refrain from addressing issues and arguments never raised in the courts below.  Part of the reason for refraining from doing so is that the parties and the lower courts never had the opportunity to consider and speak to them.  But this concern, it seems, need be of no concern to authors of special concurrences, and clearly was not a concern of the Chief Justice of the Supreme Court of Alabama in this case, who authored an opinion regarding which "gratuitous" may be too mild a description.

An amendment to the Alabama Constitution adopted in 2018 provides that Alabama, as a matter of public policy, supports "the sanctity of unborn life and the rights of unborn children, including the right to life."  This provision is briefly noted in the majority opinion but isn't relied on it to any significant extent.  Notwithstanding that fact, however, the Chief Justice decides to "take this opportunity" to address its meaning and legal effect, with particular focus on the proper interpretation of "the sanctity of unborn life."

There follows a discourse by the Chief Justice 22 pages in length, in which God is referred to 41 times. That's a little less than twice on each page. God isn't referred to except by the Chief Justice.  The other opinions and Justices manage to address the case without invoking God or the fear of God, which as we'll see is called on if not summoned in support of the opinion of the Chief.  He also refers to the Book of Genesis, the Book of Jeremiah, the Book of Exodus, portions of the works of Thomas Aquinas, Augustine, John Calvin and Jonathon Edwards, as well as several commenters on the Bible.  I feel a certain compassion for the Chief Justice's clerk, who may have thought the research and writing involved in that position wouldn't address religious and theological works in such detail.

Rendered to its essence, the special concurrence amounts to an argument, or perhaps more properly a declaration, that the 2018 amendment to the Alabama Constitution must be considered, and followed, as a religious injunction.

This is made apparent from the concurrence's conclusion.  The Chief Justice concludes his opinion with language of a kind I've never seen included in a legal opinion of any court during nearly 45 years of practicing law.  It's so remarkable I must quote it:

"The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: "Before I formed you in the womb I knew you, Before you were born I sanctified you." Jeremiah 1:5 (NKJV 1982). All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image."

The language is pontifical; thus the "We believe"--he purports to speak for the people of Alabama, much as a pope may purport to speak for Catholics everywhere in a certain capacity.  More than that, he makes what is essentially a religious claim, and maintains that all three branches of the State of Alabama are required to follow it "in accordance with fear of a holy God..."  Those who disagree with the Chief Justice, it appears, run the risk of being the subject of God's wrath. It seems that there are still those who conflate religion and the law.  History tells us this is dangerous.

I wonder, I must admit, how he defines "likeness."  But I wonder about that generally when it's claimed that God made us in his likeness.  I can't understand how anyone would want God to be like us, or would worship God if he was.

I don't know if special concurrences are accorded any weight in Alabama,  Concurrences generally are not binding precedent.  I hope that this particular one would be considered, at most, persuasive.  If it is the majority decision alone that's precedential, I don't think a theocracy has been established by it.  One may well disagree with the Alabama Supreme Court's decision regarding the unborn, but it arguably follows from the law of that state and avoids the spectacular excesses indulged in by its Chief Justice.  It must be hoped it will continue to do so.

Kneeling, Standing and the Law

 

I've commented before in this blog regarding the Supreme Court's decision in the Great Pray for Football case,  Kennedy v. Bremerton School District.  That was the case in which an assistant high school football coach claimed his right to freely exercise his religion was violated by a school district because it sought to restrict his ostentatious prayer-sessions after games, which took place at the 50 yard line (see the above copy of an exhibit in the case).  His religion, it seems, provides that such prayers be made.

After attempts to accommodate his desire to pray alone and silently, while in public and with others (as shown above), he was terminated.   A majority of the Supreme Court agreed with him that his First Amendment rights were violated.

As a result, he got his job back.  He has been residing in Florida for three years, however, quite a distance from Bremerton, which is in the State of Washington.  Having been reinstated, he resigned the position after a single game.  He made some vague claims in connection with the resignation regarding his feeling he was not getting from the school district what was justly due him given his status and his victory at the Supreme Court.  It apparently only took a single game for him to believe that to be the case.  He also acknowledged, though, that he's been living in Florida and has some sick relations there, and wanted to be there with his family.  His coaching position was only part-time, and he quit a full-time job at a Bremerton shipyard to go to Florida.

Since his employment with the school district, he has been photographed in various places, including before the Supreme Court building in D.C., usually kneeling.  He apparently kneels, and presumably prays when doing so, with considerable frequency and in the presence of photographers.  He's appeared in various media and talk shows, and is something of a celebrity.  He's summoned to speak at various conservative and religious events.  He's written a book.  A movie about him is said to be in the works.  He has his own Website.  

I think it's understandable, then, that some suspect his desire to regain his position as assistant high school football coach was never the reason for his sojourn in the legal system, and indeed that he was never interested in doing so.  One even might suspect that he conducted himself in such a manner that the school district felt it had no option but to terminate him, as his prayers became more and more of a spectacle.  In other words, that the school district was goaded into action.  In even more other words, that there was a deliberate attempt to obtain a Supreme Court holding on the issue.

One might also suspect that the Great No-Gay Wedding Website case, 303 Creative LLC v. Elenis, was similarly brought to solve what wasn't actually experienced as a problem given the fact that the person who supposedly sought to have a website devoted to a gay wedding denies having done so.  The tendency of the Supreme Court, or of any court, to decide questions which do not actually arise is troubling.

It's been the rule for a long time that a person who brings a legal action must have what's called "standing" to do so.   Generally speaking, a person has standing when the person has sustained or in the circumstances very likely will sustain an injury for which a legal remedy is available.  Legal action commenced merely to prove a point or address issues which may or may not arise, but haven't yet arisen, are to be disregarded by courts, which presumably have other things to do for people who are actually involved in existing disputes and have sustained actual damages.

The poet Wallace Stevens wrote that the imagination loses vitality as it ceases to adhere to the real.  It's the same with the law.  Where there is no real dispute to be resolved, no real circumstances to be addressed, legal decisions become detached from real disputes and real people.  They're mere abstractions.  They seek to address imagined realities.  They lack context.  They're speculations on what might or should be the case.  They're subjective declarations on what should be the case should something actually be the case.  Because they don't "adhere to the real" they're more likely to reflect the individual desires and preferences of those who make the decisions.  Also, it makes it difficult to assess when a legal decision would apply in the case of an actual injury or dispute, which can be very fact-dependent and specific.

It's to be hoped that the Supreme Court Justices will curb their apparent desire to proclaim what the law should be at least enough to require that a real controversy exist before doing so.  Otherwise, they may become political agents, and even unelected legislators, rather than judges.  There was a time when conservatives feared that was taking place.  Perhaps no longer.

Your World Frightens And Confuses Me

I'm a great fan of Keyrock, the Unfrozen Caveman Lawyer, played by the late, great Phil Hartman in several sketches on Saturday Night Live.  As I grow older in this profession, I come more and more to think, if not to say as he did:  "Your world frightens and confuses me."

Though I'm not an unfrozen caveman, I am an old lawyer, and am feeling my years.  I expect to retire next year.  When I began practicing, carbon paper was still in use.  Electronic typewriters with limited memory were available, but no word processors, and no computers.  Fax machines made an appearance after a time, but used thermal paper, which curled annoyingly.  There were no cell phones and certainly no smart phones.  Car phones were available, but were costly and cumbersome.  Research was done using books.

The practice of law changed with the technology, and while I have a working knowledge of what is essential to practice in these times, there's much I'm unaware of for the simple reason that there's been no need to encounter it--yet.  But those who are young in the law can do much I cannot do, and know much I haven't convinced myself that it's useful for me to know about the practice, and about the world.

That world frightens and confuses me.  So, in some ways, does the practice of law.  But the world is far more frightening to me than the changing, and changed, practice.  

Each year since 1996 I've attended a two day seminar in an area of law I've made something of a specialty of over the years.  This year it served to remind me of my age more than it served to educate me of anything else.  It did so by the youth of its attendees, but also by the subject matter of its presentations.  I had no idea that there are groups of people who carry cameras and microphones into city and town halls and courthouses for the purpose of filming and haruanging those trying to work there, hoping that they may find them so annoying as to engage with them.  When they do, they post the hapless and usually harmless people to YouTube.  The more obnoxious they are the more they are able to obtain clips which show those filmed in a bad light and which provide them with the opportunity to pontificate.

These folk are apparently called, for reasons unclear to me, "First Amendment Auditors."  Their antics may be dealt with easily enough with some training and signage, fortunately, but those ignorant of them (as I was until recently) will be annoyed and befuddled needlessly.   Some of them are actually paid for their sad displays, likely through advertisers who hope to influence their viewers.  It's astonishing--and frightening and confusing to me--what people will pay for in this bizarre new world.

Another presentation dealt with AI and the practice of law.  AI may be used to prepare memoranda of law which will adequately describe, in a general way, information on particular legal topics.  If care is not taken to review the product, though, the results can be devastating for counsel and clients.  A horror story was told of an experienced lawyer who presented a brief to a court, filled with argument and citations to case law.  The lawyer who filed it didn't bother to check the citations, but opposing counsel did and found that the cases referred to were fabricated by the AI.  It made up cases, apparently taking names which it found in the vast reaches of the Web which seemed related to the subject matter of the case.  The case involved airline liability, so the cases generated included names of defendants which included the word "airlines" thus seeming to be airline companies.  The lawyer was sanctioned by the court.  What befell the client wasn't mentioned.

I'll depart from the practice of law relatively soon, but when I'll depart this world is unclear and can't be determined.  Until I do, I'm in a world that seems designed to frighten and confuse.

As that world is more and more one generated by computers,  I'm reminded of a description of the product or data produced by computers I've heard--"garbage in, garbage out."   Bad data downloaded, means bad product.  I see no limits on the garbage entered, or the resulting garbage.  Do we live in a "World of Shit" (Full Metal Jacket reference)?  Where no effort is required, no discipline is needed.

What nobody seems to have considered thoroughly, it seems to me, are the characteristics of those who enter data into the system and those who view the results.  There is a demand for garbage, and an endless supply of it.  Welcome to the new world.

Draggin' Rites

The State of Tennessee, famous as the state in which the Scopes "Monkey Trial" took place, has apparently sought once more to display its peculiarity by, supposedly, banning drag shows.   The bill awaits the state governor dragging a pen across it, signing his name to it, at the time I type this post.

Or at least drag shows of a sort.  It's an odd law, which is perhaps appropriate in more than one sense.  It includes among those things described as "adult cabaret performances" those by male and female impersonators, acting in such a way as to arouse a "prurient interest."  Those performances among others deemed adult cabaret performances under Tennessee law may not take place in public, or in an area where they may be seen by minors.

I've been to a few drag shows.  They aroused no "prurient interest" in me.  They aroused no other interest in me either, really.  I found them silly, and occasionally amusing.  I'm not sure why they're popular, as it seems they are to some at least.  Most of all I found them not at all evocative of lust or sexual desire.

One of the odd characteristics of this law is that, since a prurient interest must be aroused in order for the performance to be prohibited, it would (as would be expected) seem to exempt from the law's operation drag shows which fail to do so, and prohibit only those which do.  But performances arousing prurient interest of other kinds are already prohibited under existing law.  It seems, then, that this law accomplishes nothing of substance, unless drag shows are assumed in all cases to arouse prurient interest.

It would be difficult even for the State of Tennessee to maintain that performance in drag arouses prurient interest in and of itself.  A picture of Milton Berle in drag graces this post.  Uncle Miltie dressed himself in women's clothes fairly frequently.  So, for that matter, did Flip Wilson.  Robin Williams impersonated a woman in Mrs. Doubtfire.  Dustin Hoffman did in Tootsie.  Williams and Hoffman impersonated women, via film, a in public place and where minors could see them.  Julie Andrews impersonated a man in Victor/Victoria.  Jack Lemmon and Tony Curtis impersonated women in Some Like it Hot.

Drag performances have, in fact, taken place for centuries.  Shakespeare's Portia; Peter Pan, are roles in which impersonation of male and female is expected to take place.  Women weren't allowed on stage in ancient Greece, so the many female roles in plays written and performed then were played by men.

As this law is seemingly insubstantial, it is to be inferred that it isn't intended to do much more or different from existing law.  Like so much else in our increasingly less Glorious Union, then, it is a stunt; something politicians engage in efforts to impress those they seek to gratify.  

Who would be gratified in this case?  Not someone who actually reads the law, as anyone who does will understand its limits and know it achieves nothing beyond expressly lumping drag shows with other forms of "adult cabaret performances."  More likely it would be those who don't read the law, but believe it to prohibit kinds of performances they think harmful in some sense, particularly to minors.

Given the history of actors and comedians appearing in drag together with the fact that those appearances have generally thought to be funny, the current concern about this can only be explained if some people now consider drag performances as something different from what they've been considered in the past.  Now, they somehow have the potential to harm children.  It's doubtful that Uncle Miltie was thought to be harming them by appearing on TV in drag, or that the many others who did so on the small and large screens over the years were harming as well.

Some of us seem to be fearful that performances by male and female impersonators will influence minors to change their gender, or perhaps sex, or perhaps sexual identity.  There is what appears to be a growing fear of or revulsion against transgenderism (is there such a word?).  Perhaps it's more correct to say fear of or revulsion against transgenders.

However, is there any evidence that drag shows induce or influence anyone to do anything but part with their money, or giggle, or groan, or do several other generally harmless things?  I strongly doubt it.  In the absence of any evidence, why is a law required?

More laws, less justice, to paraphrase Marcus Tullius Cicero and others.  This is a show law, one with no purpose but to assuage prejudices, and law shows are more dangerous than drag shows.

  

The Law as Public School Teacher

You'd think our Glorious Union has had enough of laws seeking to dictate what is or is not taught in public schools.  The infamous Butler Act, adopted by the State of Tennessee nearly 100 years ago, led to the Scopes Trial, which led to the humiliation of William Jennings Bryan (and possibly his death mere days after the trial concluded) by Clarence Darrow, to some blistering articles by H.L. Mencken, and made the United States the laughing-stock of a good portion of the Western World, is perhaps the most notable law which sought to do so in modern times.  Or at least it was, until recently. 

The Butler Act at least had the virtue of clarity.  That law stated in pertinent part "[t]hat it shall be unlawful for any teacher in any of the universities, normals and all other public schools of the State which are supported, in whole or in part, by the public school funds of the state, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals."  I know, the use of the word "story" in the law is amusing.  The legislators of Tennessee were apparently unaware of the implications of that word.

But now the State of Florida has adopted a law which similarly seeks to regulate what takes place in classrooms, which not only lacks clarity but seems to flaunt its vagueness.  This is the so-called "Don't Say Gay" law, officially Florida SB 1834."  It states, also in pertinent part:

 "A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.  A parent of a student may bring an action against a school district to obtain a declaratory judgment that a school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief."

Defenders of the law like to point out that it provides that discussion of sexual orientation or gender identity is only contrary to the law in kindergarden to third grade, according to its terms ("primary grade levels").  Who would object to that, really?  I doubt anyone does.  But that's not all the law says.  It also says discussion of such topics may not be encouraged "in a manner that is not age-appropriate or developmentally appropriate for students."  So, the law clearly applies to students of other grade levels.

A reading of the law raises several serious questions:

How does one encourage classroom discussion?  Must the discussion take place in a classroom for the law to be violated, and a cause of action arise?  What is "sexual orientation or gender identity"?  Does the fact that the law refers to a "school district procedure or practice" indicate that encouragement (whatever that may be) by a single, "rogue" teacher or other school district employee (a janitor?) wouldn't be actionable? Is it necessary that a policy or procedure, sanctioned by the school district expressly or by implication, as an entity, exist? What do "age appropriate or developmentally appropriate" mean? Is that left to the courts and the lawyers who litigate claims to decide?  Just what kind of damages are available to a parent in the action created by this law? 

What is "age appropriate or developmentally appropriate" is clearly subjective, and would vary from student to student.  Florida's legislature probably gave parents the right to sue under the law in an effort to avoid enforcement of the law being considered "state action" for constitutional purposes.  But that would leave interpretation of the law undetermined until precedent could be established through the courts, and that won't happen anytime soon.  In the interim, school districts and teachers will be justly terrified of being sued by some parent or another who thinks wrong words are being spoken in classrooms.  They may therefore be inclined to take fairly drastic steps to avoid litigation, e.g. refusing to require the reading of any books the subject matter of which involve sexual relations, prohibiting the use of certain words in classrooms, disciplining teachers, etc.

In short, it's a shoddy law, and will be difficult and expensive to implement.  The cynic in me wonders if the law was adopted purely to discourage talk of sex in the classroom, especially talk of particular kinds of sex.  Sex is something which has always frightened Americans, especially when it comes to the task of making children aware of it.  I think most of them would like if others had that task.  It may even be, ultimately, a form of posturing by politicians, always interested in obtaining popular support (at least when it doesn't interfere with monetary gain).

The law is alleged to be one protecting parental rights.  But do parents have a legitimate interest in making certain their children under the age of majority don't hear certain words of learn what other people are in terms of gender or sexual orientation?  Is it possible, indeed, that they think students won't otherwise learn of such things or speak about them unless they're "encouraged" to do so by teachers?  Only a fool would think that.

For my part, I think most parents are detriments to education, generally speaking.  They recognize that basic skills such as reading, writing and 'rithmatic (as the old song goes) must be acquired, though they probably would prefer that the use of the legendary "hickory stick" be reserved to themselves.  But otherwise, I think the preference of most is that their children think like them, be like them, talk like them and act like them until they become adults, at which time parents can claim that they're beyond their control and influence.  The sad fact is that most parents would prefer that their children not learn more than their parents have, at least in cultural or social matters in my opinion, and it may be that this law is an expression of that fact.

Justice itself isn't blind, but the law is, in the sense that the law may be good or bad, wise or stupid.  This particular law is stupid.  But it is a law nonetheless, just as the Butler Act was law, and may wreck all the havoc it did, and more.  

The Silence of the Supremes

 

The Supreme Court's authority not to exercise its authority may be one of its greatest powers.  The power to decline, to evade, to ignore has a kind of grandeur or glory.  As important as an issue may be, the Supremes may avoid it merely by doing nothing.  "True, we can do something, but we won't" saith the Court in many instances.  Like God, the Supremes need not answer prayers; they may decide that the prayers of some aren't of sufficient significance, or are clumsily made, or may be answered at another time.

The Justices need not explain their decision not to decide.   I think it's true that normally, they don't.  And why should they?  What does it matter?  They owe us no explanation.  Deciding not to decide means, in their case, that there's no way their decision not to decide may be found to be an improper decision.

In deciding not to decide, however, the Supreme Court may nonetheless decide the matter it says it will not decide.  That's the case with its latest decision not to decide, its denial of the application in the matter of Trump v. Thompson.  There, the minions of the person formerly known as President of the United States sought a stay of mandate and injunction pending review of a Court of Appeals decision finding no basis for that person's effort to avoid release of records concerning the January 6, 2021 storming of the Capitol on the grounds of executive privilege.  By deciding not to accept that application, the Supremes in effect sanction the decision of the Court of Appeals.

It appears that all but one of the Justices agreed in the denial of the application.  The one who did not, Justice Thomas, didn't write to explain why he would have accepted it.  This isn't unusual, and perhaps to be expected in the case of a Justice who, judging from oral arguments to the Court, may be the most Silent Supreme in history.

Justice Kavanaugh took pains to tell us not why he agreed the application should be denied, but why he might accept such an application in the future.  In other words, he thoughtfully explained why he might vote to accept an application by a former president to prevent disclosure of documents on the grounds of executive privilege.

He wrote that there could be circumstances where a former president would appropriately claim executive privilege even where a current president doesn't.  A sitting president may improperly decline to assert executive privilege for partisan reasons, for example.  According to Justice Kavanaugh, unlike the Supreme Court, a president may not decline to exercise authority without recourse or review.  Perhaps Justice Kavanaugh is a zealous defender of the uniqueness of the Supreme Court's unlimited power to decline.

Also, according to Justice Kavanaugh, there may be circumstances where the holding that former presidents may not exercise executive privilege would cause the president and president's advisors to fail to freely discuss and consider possibilities for action; it would have a chilling effect, in other words, to the detriment of the nation.

He provides no concrete examples in support of this speculation, and it would seem most difficult to make such a case with regard to documents concerning what took place on January 6. 2021.  Also, it's an unnecessary claim for him to make, as the Court of Appeals did not hold that a former president could not raise executive privilege, and as noted by the Supreme Court in denying the application, all the Court of Appeals said on the subject was non-binding dicta.  It couldn't be relied on by any litigant. 

So it's curious why he bothered to engage in this needless exercise.  Perhaps as the most junior member for the Court, he feels a need to express himself at every opportunity.  Perhaps he wants to provide some assurance to someone regarding his position on such matters in the future.

But my feeling is that when a Justice decides to, unnecessarily, enlighten us on why a matter might be accepted for decision in the future, that Justice should be required to explain why it shouldn't be accepted by the Court in the case at hand.   There's something dubious, even disingenuous, about declining to explain why a decision is made while simultaneously signaling how a decision would be made in the future.

 

Disappointment in the Law

"There's going to be a lot of disappointment in the law."  So says Justice Sotomayor, or so she said recently in a presentation to law students sponsored by the American Bar Association.

We should be thankful for the warning, but it might be said that the law has always been disappointing in one way or another.  I venture to say that to lawyers, the law may be disappointing on a daily basis.  That may be the case for their clients as well, sadly.  The law isn't satisfying by its nature, being restrictive in many cases, a nuisance in others.

But clearly the Justice wasn't speaking about the law's often disappointing intricacy and obtuseness, or the disappointment caused by its flawed application by some of the many minions of the legal system.  She was apparently referring to something she anticipates will disappoint us in our regard for the law as something which is worthy of regard; in other words, in the law as a representation of justice.  It seems from what she said that she expects to write many dissents in the future.

As I've written before, I distinguish the law from what's moral, and therefore from what's just.  That's to say, I believe the law is the law regardless of whether its considered moral or just.  There may be unjust laws; there may be unjust decisions made by courts.  This doesn't mean they aren't law.

Neither does it mean it mean that laws may not disappoint because they're bad laws or are unjust.  So, Justice Sotomayor, being a member of the Supreme Court, likely means that she expects to be disappointed by decisions made by that august body in the future and expects others will be disappointed as well.

She already expressed disappointment with the decision of the majority of the Court to avoid addressing the Texas abortion law which was the subject of the last post.  "Disappointment" is probably too mild a word to describe what she wrote regarding the majority's evasion.  It's too mild a word to describe what I felt about it.

What she means can't be determined precisely, but I suspect that what she anticipates is that forthcoming decisions by the Supremes should be expected to reflect the positions and, presumably, prejudices of the majority of the Justices who are described as conservatives.  Just what "conservative" means in these dark times is debatable, but given the cases which are scheduled to come before them I'd guess that she anticipates disappointment with decisions in those cases addressing abortion and the Second Amendment, and other cases where individual rights--those viewed as contained within the Bill of Rights especially--are opposed to what would arguably seem to be the public interest.

The conflict between those rights as perceived and the health and welfare of others isn't something new.  And in fact it's been recognized, at least in the past and at least in the law, that those rights aren't absolute and are subject to qualification.  Now, though, it isn't apparent that we possess the intelligence and sophistication required to recognize the need for qualifications, or when we do possess them whether there is enough interest in them for them to be applied.  

Our gun-mad nation seems so enamored of firearms that many believe there is no limitation whatsoever on the desire to acquire, and perhaps even use, them regardless of what they may be.  Anti-maskers and anti-vaxxers are so extreme in their opinions that they seem convinced that their "right" not to wear masks and not be vaccinated must be honored regardless of any risk to others (which they busily downplay in any case).  Already we've seen the First Amendment construed to include "money" as a form of speech, regardless of the propensity for corruption, and corporations granted the right to practice religion or hold religious beliefs without legal restriction.

Members of the "conservative" majority on the Supreme Court are aware that some question their motivations, suggesting that they will make decisions consistent with political positions and prejudices.  So we see them busily denying they will do so, claiming that they aren't "political hacks" and that they aren't a "cabal."  Claiming that they are is said to be an attempt to intimidate the Court.  They sound rather defensive, I think.  Reacting to claims of political motivations by calling them attempts at intimidation emphasizes the significance of such motivations, in my mind.  If political motivations play no part in a Justice's decisions, why would concern about them be considered intimidating by that Justice?

"What power has law where only money rules?" asked Petronius Arbiter, courtier in the court of Nero.  Not much, it would seem; and the power of money is unrivaled when it comes to politics, thanks in part to the Supremes themselves.    Where money is power, the law will protect the moneyed interests.  Those with money will want to keep it, and in a time of limited resources that will mean keeping money out of the hands of others, and the government.  Perhaps this is what Justice Sotomayor fears will foster disappointment in the law.  If not, it's a legitimate fear.  The protection of legal rights, individual rights, is essentially selfish when it comes to gaining and preserving money and power, and that would seem the overwhelming concern of those who already have money, and power. 

There's No Law But The Law

The existence of the law is one thing; it's merit and demerit another.  Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry.

These are words of John Austin, who is considered to be the founder of a philosophy of law called "legal positivism."  He was a contemporary of Jeremy Bentham.  J.S. Mill attended his lectures on law.

A legal positivist maintains that the law is something that exists regardless of whether it's good or bad.  It is something different and separate from what's described as natural law.  When we study the law as a functioning system, therefore, it's specious to contend, as people too often do, that it isn't really the law because it doesn't meet a particular moral standard, whether that standard be natural law, the commandments of God, or some other standard by which right and wrong, good and bad may be determined.

According to the legal positivist, it's incorrect, therefore, to claim that a law considered wrong or bad according to some such standard isn't a law.  It's a law alright.  It may be a bad one.  We may claim it should be changed, or shouldn't be followed, but a law it is and so it shall remain until changed or revoked.

There are those who have difficulty accepting this view.  They appear to believe that the law must be something else; something higher, something that's just, fair, equitable.   A law must comport with natural law, and recognize and uphold natural rights.  The law according to their point of view isn't the law we humans and our governments may adopt, promulgate and enforce.  The real, true law is otherwise there in some respect, written in the stars as it were, or existing in the mind of God.

The proponents of the American and French Revolution were given to maintaining that the laws they objected to were contrary to natural law and/or natural rights, which were superior to the law imposed by those they rebelled against.  Thus, they were not appropriately law under this conception.  Not being law, there was no obligation to follow them and even a positive duty to defy them.  This apparently was felt necessary to justify rebellion.  It may be it was believed that characterizing them in this fashion created more of a foundation for revolution then characterizing them as merely bad, unjust laws.  A tyrant's laws are more evil if they constitute a violation of the laws of God or Nature than if they only seem bad to other, fallible, humans.

Perhaps this was an understandable view when it was claimed that kings ruled by divine right and governmental authority could not be challenged without being dramatically unjust.  Those times are gone, though.  When man is the measure of all things, appeals to an unwritten law are unavailing, or at least unconvincing.  

Some people tend to believe that the acceptance of legal positivism requires that we believe all laws, all systems of law, are the same in merit, and that any law must be obeyed.  That's not something that follows from the premise that bad laws are laws nonetheless.  It's a conclusion which in its own way is derived from the belief that the only real law is that of nature or nature's God.  In that case, of course, the laws must be obeyed.  Interestingly, those who don't accept legal positivism will also tend to be those who claim that laws they find objectionable need not be followed.  In that case the law is merely a human contrivance which may be violated, when it serves to protect, for example, rights we believe don't exist, laws which protect people we don't believe should be protected, or laws which allow conduct we believe should be eradicated instead of protected.

Legal positivism imposes a most useful distinction.  That distinction is between the existence of the law and its worth, or merit.  Knowing what a law is, why it was adopted, how it functions in a legal system, is far more useful in determining whether it should or should not be changed than some effort at deduction from assumed standards, especially those that are supposed to be embodied in nature or exist in the mind of God.