Law posts

“Ginsburg's frustrations have grown over the years. She got along well with William Rehnquist, the late Chief Justice ... 'I was very fond of the old Chief,' Ginsburg told me. As for his successor, Roberts, Ginsburg offered this faint praise: 'For the public, I think the current Chief is very good at meeting and greeting people, always saying the right thing for the remarks he makes for five or ten minutes at various gatherings.'”

-- from “Heavyweight: How Ruth Bader Ginsburg has moved the Supreme Court,” by Jeffrey Toobin, in the March 11, 2013 New Yorker. A slideshow of Justice Ginsburg can be found on the New Yorker's site here. The article itself is only excerpted—another reason, as if you need it, to subscribe to The New Yorker. Great stuff on her feminist victories before the U.S. Supreme Court in the 1970s, her views of the judicial process (best to move slowly and carefully), and why she was ultimately against Roe v. Wade (it didn't move slowly or carefully, and thus allowed enemies to gather). Apparently she's a favorite of Pres. Obama (another conservative liberal). But will she retire before his term ends in 2017, allowing him to appoint a successor? Is the party of the president even relevant when deciding to leave the Supreme Court? “I think it is for all of us,” she says.

What do dozens of corporations, a group of prominent Republicans, and Pres. Obama have in common? They're all against Prop 8. From Richard Socarides' post, “Obama's Brief Against Proposition 8 Goes Far,” on The New Yorker site, March 1, 2013:

Until last May, the President was not even on record as supporting same-sex marriage. Early on during his first term, gay-rights advocates were enraged when the Justice Department filed a grossly insensitive, Bush-era brief in a lesser known gay-rights case. Because the federal government is not a party to the California case, he could have sat this one out, or asked the Supreme Court to rule on narrow procedural grounds that would bring marriage only to California.

Instead, his Administration has filed a brief that goes further than he ever has before, and further than the 9th Circuit Court of Appeals went in its reasoning when it affirmed the lower court’s ruling throwing out Proposition 8. Nor is Obama alone on this one: a group of prominent Republicans submitted an amicus brief of their own against Proposition 8, and dozens of corporations have signed one, too. Even the State of California, which had refused to defend the law, submitted a new amicus brief on Thursday, asking the Court to declare its own law unconstitutional."

Seattle, December 9, 2012

1. The individual mandate, the crux of the suit against Obamacare, was their idea in the first place:

The mandate made its political début in a 1989 Heritage Foundation brief titled “Assuring Affordable Health Care for All Americans,” as a counterpoint to the single-payer system and the employer mandate, which were favored in Democratic circles. In the brief, Stuart Butler, the foundation’s health-care expert, argued, “Many states now require passengers in automobiles to wear seat-belts for their own protection. Many others require anybody driving a car to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement.” The mandate made its first legislative appearance in 1993, in the Health Equity and Access Reform Today Act—the Republicans’ alternative to President Clinton’s health-reform bill—which was sponsored by John Chafee, of Rhode Island, and co-sponsored by eighteen Republicans, including Bob Dole, who was then the Senate Minority Leader.

--Ezra Klein in “Unpopupular Mandate” in the June 25, 2012 New Yorker

2. Calling the mandate a 'tax,' the argument that won the day, was their idea, too:

In declaring the mandate a tax, [Chief Justice John] Roberts broke with President Obama, who had publicly insisted the law didn't constitute a tax.

Roberts declared that Congress could not force citizens to buy health insurance under the Commerce Clause—agreeing with the four conservative justices on that point—but that the Commerce Clause ultimately didn't matter, because the mandate fell under Congress's power to levy taxes.

Graetz said it wasn't a matter of Roberts', or any of the justices' ideology; it's simply that tax law has always been broadly interpreted. ...

“That's clearly constitutional. No one says that's not constitutional. That was upheld long ago. The only question is whether because they didn't call it a tax, that would mean it wasn't a tax,” he said. “Obviously Justice Roberts didn't think what the president called it had any legal effect.”

--Reid Pillifant, “How John Roberts Saved Obamacare,” Capital New York

I give Mitt Romney a month before he starts taking credit for it.

UPDATE: Rick Perlstein, author of “Before the Storm” and “Nixonland,” writes about the core conservatism of Obamacare (psst: individual responsibility and reduction of tax-eaters) in The New York Daily News.

This time, they were in rhythm.

Jeffrey Toobin has a warning for you, me, all of us.

The staff writer for The New Yorker, and author of the book “The Nine: Inside the Secret World of the Supreme Court,” has written an article that encompasses not only the history of the Citizens United decision, but, as important, the intersection of money and politics and corporations in U.S. history. His conclusions are chilling but none more so than Justice Anthony Kennedy’s actual argument writing for the majority in Citizens United:

“The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.”

The voices that best represent the most significant segments of the economy? Corporations. Because corporations don’t have enough of a voice in our society.

No, it’s because corporations are people, or have been viewed as such by the U.S. Supreme Court since 1886 and the Santa Clare County v. Southern Pacific Railroad case, when Chief Justice Morrison R. Waite handled the matter summarily: “The court does not want to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution . . . applies to these corporations,” he said. “We are all of opinion that it does.” Done and done.

Ah, but in 1907 Congress passed the Tillman Act, which barred corporations from contributing directly to federal campaigns. Toobin calls it, “a first step toward what Congress described as its goal: elections ‘free from the power of money.’”

A second step occurred with the Federal Election Campaign Act Amendments of 1974, passed in the wake of the Watergate scandal, which created much of our familiar regulatory structure. Toobin: “The law imposed unprecedented limits on campaign contributions and spending; created the Federal Election Commission to enforce the act; established an optional system of public financing for Presidential elections; and required extensive disclosure of campaign contributions and expenditures.”

The court’s decision in Buckley v. Valeo (1976), parsed this law, distinguishing between expenditures and contributions. It argued that you could not restrict expenditures, since money was like speech, and speech was protected under the First Amendment, but you could place limits on contributions. Thus Ross Perot or Michael Bloomberg could spend however much of their own money to get elected; but they could only contribute so much to help someone else get elected.

Citizens United upended all of this. It obliterated the McCain-Feingold law, which the Rehnquist court had upheld in 2003. And it didn’t have to. The Supreme Court, and Chief Justice John Roberts in particular, picked it to do just this.

Initially, Citizens was about a narrow matter within McCain-Feingold: whether an anti-Hilary Clinton documentary, “Hilary: The Movie,” created by a non-profit, political organization called Citizens United, an organization which was itself created by the man who helped produce the Willie Horton ad that helped elected George H.W. Bush president in 1988, could be shown on television in the month before a primary or election in order to influence that primary or election. Such a viewing, as interpreted by the FEC, was forbidden under McCain-Feingold. The people behind Citizens United sued, and hired former Solicitor General Ted Olson (Bush v. Gore) to argue their case before the court.

In March 2009, Olson argued the case “as applied” (i.e., dealing with the specifics of this case, and hoping for a narrow, favorable ruling) as opposed to “on its face” (dealing with the entire law). But the Roberts court had the majority to upend the entire law, so Roberts ordered the case re-argued in the fall. And it was. And it swept aside not only McCain-Feingold but the 100 years of protection of the Tillman Act.

Here’s Justice John Paul Stevens, a moderate Republican appointee, in his 90-page, angry dissent:

“We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees...

“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

Toobin writes: “It was an impressive dissent, but that was all it was. Anthony Kennedy, on the other hand, was reshaping American politics.”

Read the whole thing here. It’s necessary reading if we're ever going to become citizens united.

Chief Justice of the U.S. Supreme Court John Roberts (right).

SCENE: U.S. Supreme Court Building, March 2012. EL, friend of the court, and, really, lots of folks, tells the court an individual mandate is essential for the health insurance market to work.

JUSTICE ANTONIN SCALIA: Why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant. Not everybody needs a liver transplant. I mean. . . Could you define the market? Everybody has to buy food sooner or later...

EL: Some of us sooner. Some of us more often.

SCALIA: ...so you define the market as food, therefore, everybody is in the market. Therefore, you can make people buy broccoli.

EL: “But you can't make them eat it.” I believe George H.W. Bush said that.

SCALIA: Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principled basis?

EL: There's a more principled basis for distinguishing the health care markets from other markets than there was in distinguishing Florida from other states in Bush v. Gore, but some institution or other, which shall remain nameless, did that very thing. Here are some words from that decision: “Our consideration is limited to the present circumstances.” Does that help you with this case? Now eat your broccoli.

“Memo to President Obama: How about appointing [labor lawyer Thomas] Geoghegan (whom you surely know, or know of, from his quiet heroics on behalf of working folk in Chicago) to the federal bench, preferably the Supreme Court? He’s eminently qualified. He writes prose that can be read for pleasure. He thinks clearly and creatively. He even ran for dogcatcher once. Admittedly, he’s not one of your chronically cautious “centrists,” but isn’t it about time the Court had a serious (and funny) counterweight to the charmless right-wing dittoheads who now dominate it and who are so politically and morally insensible that they cannot distinguish between a Fortune 500 corporation and a human being?”

--Hendrik Hertzberg in “Mr. Justice Geoghegan, Dissenting,” on The New Yorker Web site.

I'm not smart enough to say who does or doesn't belong on the USSC, but I interviewed Mr. Geoghegan for Illinois Super Lawyers a few years back—about running for U.S. Congress, about why the left seems so beaten down in this country, about why productivity goes up and real wages don't—and he's impressive. Put it this way: I'd certainly like to hear his voice, his point of view, more often in national discussions than, as Hertzberg says above, the usual charmless dittoheads. I asked him, for example, what stayed with him about his campaign for Rahm Emanuel's seat and he said: “I met a lot of elderly people living alone who don’t have enough to live on.” Please send that sentence to Paul Ryan and John Boehner, symptomatic of the unsympathetic right.

What do you do with a quote that doesn't quite work?

This is how John Markoff ended his New York Times piece on the sorting capabilities of computers and computer programs, such as e-discovery, replacing expensive teams of lawyers during the discovery phase of a case:

The computers seem to be good at their new jobs. Mr. Herr, the former chemical company lawyer, used e-discovery software to reanalyze work his company’s lawyers did in the 1980s and ’90s. His human colleagues had been only 60 percent accurate, he found.

“Think about how much money had been spent to be slightly better than a coin toss,” he said.

The End.

Except ... that analogy is horrible, isn't it? You flip a coin and you get one of two results: heads or tails. You send people searching for something and the results are infinite: they can find zero percent of what they're looking for, 12.1 percent of what they're looking for, 76.7 percent of what they're looking for. They can find 12 related cases and miss none, or miss three, or miss 346. Discovery would be a lot easier if, like a coin toss, it had to wind up one of two ways.

My instinct would be not to use the quote, since it fudges the point of the story, but maybe I'm alone here.

* *

The article, by the way, focuses on technology and the law, but the money quote is about all of us:

David H. Autor, an economics professor at the Massachusetts Institute of Technology, says the United States economy is being “hollowed out.” New jobs, he says, are coming at the bottom of the economic pyramid, jobs in the middle are being lost to automation and outsourcing, and now job growth at the top is slowing because of automation.

“There is no reason to think that technology creates unemployment,” Professor Autor said. “Over the long run we find things for people to do. The harder question is, does changing technology always lead to better jobs? The answer is no.”

I tend to disagree with the professor on this—I think technology does create unemployment—and would question his use of subject and object in the second sentence of the second graf (“we” sounds like it includes “me,” i.e., him, while “people” sounds like it doesn't include “me,” i.e., him), but the larger point is scary and needs to be reiterated. What kind of society are we allowing ourselves to create here? Techies thrive, apps are free, the rest of us work at Cinnabon.

Now they're using such software for policing:

The software seeks to visualize chains of events. It identifies discussions that might have taken place across e-mail, instant messages and telephone calls.

Then the computer pounces, so to speak, capturing “digital anomalies” that white-collar criminals often create in trying to hide their activities.

Meaning the same types of folks who wrote the software for iPhone's autocorrect, which tells you, mostly incorrectly, what you want to write, are creating the software to determine whether or not you're a criminal. You havé the rogge to demain silent.*

*Yes, my Autocorrect is set for French. Years ago, I had the iPhone's language set to French, and, like the far-flung soldier that keeps fighting long after the war, Autocorrect keeps trying to correct my English into French. There's no obvious setting to fix this so I've simply turned my Autocorrect OFF. (Settings —> General —> Keyboard)**

**Once I figured out how to turn Autocorrect OFF, though, which is like two seconds ago, I guessed the solution. Under Settings —> General —> International, the second item is Keyboards, under which there are four: the four languages I've played around with: English, French, Chinese and Danish. Once I deleted everything but English, and turned Autocorrect back ON, it was autocorrecting in English again.***

***Still a bug. Probably corrected in later versions of iPhone.****

****Technology: Making life easier.

"Still, the summit of Stevens’s achievements on the bench came during the Bush Administration, in the series of decisions about the detention of prisoners at Guantánamo Bay, and he kept for himself the most important of these opinions. In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush’s war on terror—and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime—Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts. In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge’s dissent in the Ahrens case—which he himself had helped write, fifty-six years earlier...

"Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v. Rumsfeld, in which a five-to-three majority rejected the Bush Administration’s plans for military tribunals at Guantánamo, on the ground that they would violate both the Uniform Code of Military Justice and the Geneva conventions...

"Stevens’s repudiation of the Bush Administration’s legal approach to the war on terror was total. First, in Rasul, he opened the door to American courtrooms for the detainees; then, in Hamdan, he rejected the procedures that the Bush Administration had drawn up in response to Rasul; finally, in 2008, in Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the system that Congress had devised in response to Hamdan.

"After the attacks of September 11, 2001, the Bush Administration conducted its war on terror with almost no formal resistance from other parts of the government, until Stevens’s opinions. He was among the first voices, and certainly the most important one, to announce, as he wrote in Hamdan, that 'the Executive is bound to comply with the Rule of Law.'"

--from Jeffrey Toobin's article "After Stevens" in the March 22nd issue of The New Yorker

Stevens’s Second World War experience also played a part in perhaps his most anomalous opinion as a Justice. In 1989, he dissented from the decision that protected the right to burn the American flag as a form of protest. 'The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach,' he wrote in an unusually lyrical dissent. 'If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection.'

"'The funny thing about that case is, the only consequence of it—nobody burns flags anymore,' Stevens told me. 'It was an important symbolic form of protest at the time. But nobody does it anymore. As long as it’s legal, it’s not a big deal. You just don’t have flag burning.'”

--from Jeffrey Toobin's article "After Stevens" in the March 22nd issue of The New Yorker

"On a wall in Stevens’s chambers that is mostly covered with autographed photographs of Chicago sports heroes, from Ernie Banks to Michael Jordan, there is a box score from Game Three of the 1932 World Series, between the Yankees and the Cubs. When Babe Ruth came to bat in the fifth inning, at Wrigley Field, according to a much disputed baseball legend, he pointed to the center-field stands and then proceeded to hit a home run right to that spot. The event is known as 'the called shot.'

“'My dad took me to see the World Series, and we were sitting behind third base, not too far back,' Stevens, who was twelve years old at the time, told me. He recalled that the Cubs players had been hassling Ruth from the dugout earlier in the game. 'Ruth did point to the center-field scoreboard,' Stevens said. 'And he did hit the ball out of the park after he pointed with his bat. So it really happened.'

"Stevens has a reverence for facts. He mentioned that he vividly recalled Ruth’s shot flying over the center-field scoreboard. But, at a recent conference, a man in the audience said that Ruth’s homer had landed right next to his grandfather, who was sitting far away from the scoreboard. 'That makes me warn you that you should be careful about trusting the memory of elderly witnesses,' Stevens said. The box score was a gift from a friend; Stevens noticed that it listed the wrong pitchers for the game, so he crossed them out with a red pen, and wrote in the right names.

—from Jeffrey Toobin's article "After Stevens" in the March 22nd issue of The New Yorker

For my day job I had the privilege of interviewing Gerry Spence, the celebrated Wyoming trial attorney, a few months back. He's one of those guys who, in explaining his job, explains life. Here's an excerpt:

What are some of the biggest changes to the law during your career?
The Patriot Act is a huge change in the law. And there’s been an enormous change on the idea of terrorism. We are afraid of everything. Ultimately we are so afraid that we quietly give up our rights. We are unable to understand that our greatest danger is the loss of our few remaining rights.

Fear is a common theme in your books, isn’t it? From the childhood fears you write about in The Making of a Country Lawyer to your fear in the courtroom in How to Argue and Win Every Time.
I think we’ve been taught not to admit our fear, even to ourselves. We’re all supposed to be brave. We’re supposed to view our lives and those of our opponents without fear. But that isn’t who we really are. We’re all really very afraid. I think we have to recognize our fear and deal with it in an appropriate way. Once we face it and own up to it, it will energize us and, magically, it will retreat like a cowering dog.

There's also this:

What makes a good storyteller?
The listener can’t hear anything that doesn’t have the ring of truth to it. We happen to be one of the few species on the face of the earth that will lie and hurt members of our own species. But we’ve also got the biological advantage of all of these little psychic feelers that are out there feeling whether or not this person is being truthful.

And here's a big part of his story:

You were a prosecutor for two terms before becoming a lawyer for insurance companies …
I’ve committed a lot of sins in my life.

… Then you switched to the other side. Why?
When I first went into the law, if you were an important lawyer you represented an insurance company. That was proof that you had made it. I can remember how proud I was when I went rushing home to tell my wife that I’d been hired by an insurance company.

Then, as I matured, I began to see what was really going on in the legal system. I saw the power of money, and the power of insurance companies, and poor people that couldn’t get representation; and poor people who, if they could get representation, were represented by lawyers who couldn’t afford to take the case and deal with it in a correct fashion. And if you are sensitive to and become educated from your experience, there comes a time when either you respond to that or you become calloused against it. And it just so happens that I grew up with poor people so I recognized the helplessness of ordinary people against the power structure. And there came a time when I couldn’t represent the power structure anymore. Came in a specific case.

What case?
I was defending a woman for an insurance company. And of course when you defend for an insurance company the court lies to the jury—never tells the jury that the little old lady sitting there, in her floppy hat, and looking very poor herself and very upset, has $5 million worth of insurance.

She had run into a man with her car. He had worked all of his life in a refinery in Casper, and was about to retire. He hoped to spend his retirement with his grandchildren, do some fishing and enjoy the retirement that he’d earned. And he was hurt by this woman with her floppy hat with all of the insurance. She was totally at fault. And I walked in there on behalf of the insurance company and did things to that poor man on the stand that undercut his credibility. They were the skills of a defense attorney, and the plaintiff’s attorney couldn’t combat it. And the jury returned a verdict against him. He got nothing.

That evening I was at the Safeway store, gathering up food for a celebration, and in the checkout line here was this old man, the plaintiff, ahead of me. And he turned around. That was as close as I’d ever been to him. I could see his painful eyes—pain was on his face—and I said to him, “I’m sorry that this all turned out this way for you.” And he said, “Oh, that’s all right, Mr. Spence. You were just doing your job.”

And I thought, “Just doing my job?”

I helped him out with his groceries to his car. That evening I’m in bed with my wife, telling her this story, and I said, “Is that my job? To cheat old men out of justice?” She didn’t answer. Didn’t say a word. The next morning I got up and contacted my partner, Robert R. Rose Jr., who became chief judge of the Wyoming Supreme Court. And I said, “You know, we’re not going to do this anymore,” and he said, “No, we’re not.” I wrote nearly a score of letters to as many insurance companies that said you’re going to have to get somebody else to do this. And we’ve never, never represented an insurance company or large corporation or the government to this day.

Read the whole thing here.

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