Law postsTuesday April 08, 2014
Song for the U.S. Supreme Court
In the wake of last week's U.S. Supreme Court decision in McCutcheon v. Federal Election Commission, in which the 5-4 majority struck down a cap on total donations that can be made to individuals during federal elections, here's a song by Leonard Cohen. Lyrics first:
Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That's how it goes
Then the song itself:
Thanks, Justices Alito, Kennedy, Roberts, Scalia and Thomas, for fixing the fight a little further. And for not knowing what everybody knows.
'Live from D.C., It's ... '
Supreme Court Anonymous.
In the middle of “Clarence Thomas' Disgraceful Silence,” a New Yorker article celebrating eight years of nothing from one of our sitting justices, which includes a good primer on who speaks up when and how during oral arguments, author Jeffrey Toobin adds this throwaway thought:
The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes ...
As soon as I read it, I thought, “Hey. Why don't they televise hearings? I mean, wouldn't that be cool?”
Cool for me anyway.
Think of it. It would make the whole process less mysterious. It would open things up. It would make the court's decisions accessible to more Americans. What's the argument against besides tradition? Besides the notion that the television screen reduces everything? That lawyers, not to mention justices, might play for the cameras rather than to history?
Guess what? There's an entire Wiki pages on the subject. I'm late to the party.
Here are the arguments against televising SCOTUS hearings, with comments from me:
- Requiring the proceedings ... to be televised is a threat to judicial independence and, thus, the separation of powers. I don't get this argument. How is it a threat? To either one?
- Justice Anthony Kennedy ... argues that the measure would not align with the “etiquette” and “deference” that should “apply between branches.” Why? Are the justices indelicate during arguments? And aren't the other branches already on television? So wouldn't this ... balance things?
- Furthermore, some justices believe televising the proceedings would change the way they act in the courtroom. This is an understandable reaction. I wouldn't want to be televised at my job, for example. But I'm not making new law every day, either. It's not what you want; it's what the country needs.
- Justice Clarence Thomas also contends that televising Court proceedings would reduce the level of anonymity that justices now have and could raise security concerns. Is this is an argument against taking photos, too? Because we do that. And it's not like the Court will be a ratings bonanza. It'll be CSPAN for lawyers rather than ... say ... the Thomas confirmation hearing.
- Opponents also believe that television coverage would also take away from the mystery of the court and cause the public to misinterpret the Court and its processes. I get this argument least of all. Less mystery equals ... more misinterpretation? They don't think much of us, do they?
Thoughts? Anyone? Bueller?
Quote of the Day
Q: What’s stronger: the competitive instinct or the advocacy instinct?
A: I think as you get older, the competitive maybe gets a little less and the advocacy gets a little more. When you’re younger, you’re going to take on the world. As you get a little older, you realize the world will win.
-- from my Q&A with real estate attorney Benjamin S. Stern, “Life, Death and the Green Bay Packers,” in the 2013 issue of Wisconsin Super Lawyers magazine.
Scalia Views Congress as Source of Tyranny
Another excerpt from Justice Scalia's conversation with Jennifer Senior in New York magazine. This is right at the beginning and seems, given recent events, prescient:
[In 1974] I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a democracy—that will be the source of tyranny.
But weren’t you just saying that you learned from Watergate that presidents aren’t incorruptible?
What, and Congress is? I mean, they’re all human beings. Power tends to corrupt. But the power in Washington resides in Congress, if it wants to use it. It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
Apparently it doesn't even take all of Congress to get its act together. It merely takes one faction of one party, along with a yellowbellied Speaker, to create a kind of tyranny. Does Scalia view the current crisis (gov't shutdown, hostage taking, etc.) as just that, or do his politics, which tend to the right, get in the way?
Either way, what made me do a doubletake were his examples.
OK, first, the follow-up is wrong. The question isn't who is incorruptible (which is no one) but who holds the power. And according to Scalia, Congress holds too much of it. His evidence?
It can do anything—it can stop the Vietnam War, it can make its will felt, if it can ever get its act together to do anything.
So: stopping a war it didn't start, despite Article One of the Constitution, and the vague “making its will felt.”
Sloppy. I need to see more work here, Antonin.
Where I Agree with Scalia
Earlier this week, New York magazine published a much talked-about Q&A with Justice Antonin Scalia. I was going to write a combative post about some of his combative comments but realized it would take too long. Besides, I kept running across things he said that I agreed with.
So here are the things he said that I agree with.
On “stupid but constitutional,” which is like “shitty but not illegal”:
A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
On the idiocy of the State of the Union:
I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.
He also knows who to blame for that:
The Gipper may have been the one who started it. He’s the one who brought in people he would recognize in the audience, and things of that sort—made it a television spectacle. And once it becomes a television spectacle, it’s nothing serious.
I loved Seinfeld. In fact, I got some CDs [sic] of Seinfeld. Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? [sic] No soup for you!
On low expectations:
If you have low expectations, you’re not disappointed. When it’s somebody who you think is basically on your side on these ideological controversies, and then that person goes over to the dark side, it does make you feel bad.
On writing and aging:
But I often worry when I go back and read one of my early opinions like Morrison v. Olson. I say, “God, that’s a good opinion. I’m not sure I could write as good an opinion today.” You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.
Much of the rest I disagree with. We have different world views, different concepts of, in particular, absolutism and relativism. I wish the Q, Jennifer Senior, had asked him, for example, what he thinks is absolute and what he thinks is relative. Maybe that's too broad a question. Maybe it's too boring. He's obviously aware the world changes. But he also says this: “Words have meaning. And their meaning doesn’t change.” Esqueeze me?
Antonin and I.
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