23 May 2011

Greetings From Tornado Alley

Before diving into the link sausages, congratulations to the Nebula Award winners and nominees, including my clients, friends, and acquaintances...

  • Sometimes a "special relationship" isn't as special as it should be. Prosecutors have a special duty to disclose everything they know, at least to the other party; one can never tell when the seemingly irrelevant, mildly exculpatory bit of trivia will lead to the critical evidence of actual innocence (right, Mr Cruz?). All lawyers owe a "duty of candor" to every court... and no lawyer more than the Solicitor General. The Acting Solicitor General, General Professor Neal Katyal (as he would be called in neoclassical German style), now confesses error seventy years late in the execreble Hirabayashi/Korematsu matter of Japanese detainment. Not only are those cases objectively indefensible racism (as Justice Murphy called them at the time in dissent), but now it has been admitted that they were based upon distorting the record in front of the Court.
  • Civil rights violators should be very, very afraid when a case bearing the name "Brown" gets to the Supreme Court. This time, Brown v. Plata, No. 09–1233 (23 May 2011) (PDF), won't be named Brown in its short form, both to avoid confusion and because the Brown in this instance is the governor of California; it will instead be called Plata. This is the California prison overcrowding case; in a 5–4 decision, Justice Kennedy wrote that a mandated reduction in prison population was a reasonable, narrowly tailored remedy for the constitutional violations (such as lack of healthcare) caused by a prison system with twice its designed population.

    My interest today, though, is not with the majority opinion, but with the shoddy legal analysis and nigh-incomprehensible historical ignorance appearing in dissent. Justice Scalia penned the first dissent, joined by Justice Thomas; in it, he claims that

    Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

    (slip op. at 59), which neglects the earlier Brown matter entirely involving millions of melaninically enhanced schoolchildren... whose legal status had been legislatively established, not judicially. It neglects the obvious impact of injunctive relief implied and actually imposed for "staggering numbers" of "convicted criminals" in Miranda, in Gideon, in Mapp, and in Katz (to name just a few favorites). Further, virtually none of the authority that he cites in support of his longterm disdain for "structural injunctions" either (a) acknowledges their use by the Supreme Court in other civil rights matters in the face of legislative and executive disregard, or (b) constitutes a majority opinion (the judicial opinions are almost all concurrences, and the less said about the other sources the less character however-justified assassination I'll be engaging in online). The second dissent is, if anything, worse. Justice Alito, joined by Chief Justice Roberts, asserts that Congress, through its legislative authority, could prevent courts from providing a remedy for constitutional violations. Again, the dissent completely neglects the past, and even past opinions by Justice Alito himself; the more-than-faint sound of whinging from that opinion is more than troubling from the highest court in the land.

    The obvious link between the two dissents is their treatment of the 46,000 as all equally undeserving of relief, and thereby making two bad assumptions. The first, and most obvious, is that every prisoner to be released is both substantively and procedurally guilty. Hmm. Didn't the Court — with those four dissenters here in Plata in the respective majorities at least once — recently hold that a couple of federal white-collar prisoners had been improperly convicted, indicating that not all prisoners have exhausted all of their potential remedies? Second, the dissents implicitly deny that a legislative or executive policy decision can have unconstitutional consequences that — as the last resort — the courts must rememdy, however distasteful they find that remedy. In essence, sometimes governing requires a branch of government to step in to another branch's area of competence when that other branch refuses to fulfill its responsibilities. Separation of powers, however strict, is not separation of responsibility to the Constitution as a whole.

Well, that's enough pontificating for now. Maybe later, maybe tomorrow, I'll have some comments on UK privacy legislation and "superinjunctions," Google, e-book piracy, and so on.