Saturday, February 24, 2007

The bad decisions

I've had an idea in my head lately- that I should write about those cases where, in my opinion, the Court screwed up. Not merely where I disagree, mind you, but where the Supreme Court just flat screwed the pooch- not only was the result wrong, but the reasoning was wrong as well. A truly bad decision will will apply bad law to achieve a bad result.

The cases in the anti-canon have a few things in common. These cases are more likely to involve claims that can be resolved narrowly, but the Court uses it as an opportunity to make a broad pronouncement; truly bad cases concern substantive rights as opposed to procedural law; the worst decisions usually have dissents that people can remember for years, long after the holding is forgotten. Finally, the bad decisions usually have major political ramifications that play out for decades. So let us begin with the worst decision in the history of the Court, the grandaddy of 'em all...

Dred Scott.

The precise question before the Court was strictly jurisdictional- is a slave of African descent a citizen of the United States, with the right to sue in Federal court? The Court ruled that slaves- in fact, that all persons of African descent, free or slave- were not citizens, and therefore the Court had no jurisdiction. Chief Justice Taney, a southerner and slaveowner, wrote (in some of the most repugnant racism you will ever see)-

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

Since Africans had no rights that "the white man was bound to recognize," Dred Scott had no right to sue. End of story, right?


Even after deciding that the Court lacked jurisdiction, Taney went on consider the merits of the case. This is where the case transcends from a merely mistaken decision, to a truly horrendous one. The Court opined that slavery was embedded in the Constitution, in clauses like the importation clause or the three-fifths clause, suggesting that slavery was a base assumption made by all the Framers, and in that regard, Taney was probably right. However, based on that the Court decided that the Missouri Compromise, an act of Congress that prohibited slavery in northern territories, was unconstitutional. This extra step was purely political, designed to encourage slaveholder emigration to all the territories. When the territory was deemed eligible for admission as a state, it would be admitted as a slave state. Thus the Court tried to jury rig a slave state majority, so to end the slavery issue once and for all. Instead, it probably helped to steer the ship of state toward the Civil War. It took three constitutional amendments to undo the damage, not to mention a quarter-million dead.

It is perhaps easy to forget this today, because the case is so universally reviled for its dripping racism, judicial overreach, and it's subsequent total repudiation, but this was actually a very carefully considered decision. The Supreme Court heard argument on it twice before deciding and there were a plethora of opinions submitted, including two dissents. Maybe this goes to show that bad decisions are only so obviously wrong in hindsight; maybe it shows that the Court had to work very hard to achieve the particular result it wanted.

What is truly interesting about this case is the way it resonates in the major controversies of our own time. It has been called worst examples of both originalism ( "Dred Scott actually represented something quite the opposite of judicial activism. That case was a good example of 'originalist' interpretation or 'strict construction.'") and judicial activism (Justice Scalia dissenting in Casey, suggesting that Dred Scott is the birth of substantive due process). Its shadow is long, its shamefulness deep and abiding.

Thursday, February 22, 2007

Oh. My. God.

I owe the Legislature of Pennsylvania an apology. The phrase "ultimate sexual act" is not an example of poor legislative drafting. Instead, it copies word for word the language of the Supreme Court in Miller v. California:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

I still contend it makes little sense, but the Legislature just followed exactly the language of the decision.

Wednesday, February 21, 2007

Ultimate sex acts, normal or perverted

I am working on an appeal (that is due tomorrow- no time like the present, right?) which has significant First Amendment implications. Specifically, it is about whether the no-porn clause in our local sex offender parole/probation conditions meets Constitutional muster. Among the many things at issue is whether the condition is vague and overbroad. The trial court opined that it wasn't because the words "sexual conduct" are statutorily defined. However, the statute in question is a little less than clear. Sexual conduct is defined as "Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, anal or oral sodomy and sexual bestiality..."

Can anyone help me understand what the ultimate perverted sex act is? Or perhaps the ultimate normal sex act? I am, to be sure, intrigued...

I imagine that the original draft used the word "intimate," and it got changed somehow and no one noticed, which is both inexcusable and typical of Pennsylvania legislature, who seem not to read anything they pass. This is the state, after all, that will put you in jail for up to two years for beating someone up, but will put you in jail for up to five years if you threaten to beat someone up (simple assault is a second degree misdemeanor, but terroristic threats is a first degree misdemeanor).

Is there any excuse for such poor legislative drafting? I think not.

Tuesday, February 20, 2007

An unusual split at SCOTUS

The Supreme Court today decided the case of Philip Morris v. Estate of Williams, throwing out an $79.5 million dollar punitive damage award on the theory that awarding punitive damages as a way to punish a defendant for harms caused to other people not involved in the case is taking under the due process clause. However, and here is where my brain starts to hurt, the jury can consider harm to non-parties in determining the reprehensibility of the tortious conduct.

So they can't award punitives because other people were in harm's way, but because other people were in harm's way they can award punitives? What the hell? Justice Stevens picks up on this tortured distinction in his dissent:

While apparently recognizing the novelty of its holding, the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant’s conduct—which is permitted—from doing so in order to punish the defendant “directly”—which is forbidden. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant’s conduct, the jury is by definition punishing the defendant— directly—for third party harm. A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Citations omitted.
Also interesting is the way the Court split- Justice Breyer wrote the opinion of the Court, joined by the Chief Justice, and Justices Kennedy, Souter, and Alito. In dissent were Justices Stevens, Scalia, Thomas, and Ginsburg. Not the usual alignment to say the least.

Monday, February 19, 2007

Civil unions underway in New Jersey- America still not collapsing

Civil unions are officially underway in the Garden State, my much maligned but I would go to war to save her home state. The more I think about the nature of rights, the more I think that Justice Scalia is off his rocker. Controversies like same-sex marriage are exactly the sort of thing that courts should be deciding. Justice Scalia recently debated a Justice of the Supreme Court of Canada on the matter of original intent, living constitutions, and the role of the judiciary. Consider this assertion by Justice Scalia:

This notion simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts, he said.

Judge Scalia said back in the days when the United States was a true democracy, citizens changed the Constitution if a consensus developed around adding or eliminating a human right. “What democracy means is that the majority rules,” he said. “If you don't believe that, you don't believe in democracy.”

But Mr. Justice, equal protection of the law is the majoritarian principle, duly ratified by three-fourths of the States. Doesn't it behoove the alleged democratic majority to ratify and clarify the (in this case) non-meaning of equal protection? I admit that this argument is simplistic at best, and a borderline red-herring at worst, but equal protection of the law remains the democratcially adopted law of the land.

NOTE: I started to write one thing, then crossed it out and went a different way. Hence the reason that the title doesn't quite match the rest of the post.