The Supreme Court heard argument today in a number of consolidated cases that seek release of Trump’s tax returns. For a man who appears to commit crimes and abuse power in public view ALL THE TIME, the tax returns have proven to be quite a sticking point. Trump demonstrably has no shame whatsoever, yet is fighting tooth and nail to keep the taxes secret. Could this be the smoking gun that finally brings down his presidency?
Will live argument change the way we understand justice in the United States, or will greater accessibility to the high court’s inner workings increase our partisan divide?
It’s a big day. For the first time in history, anyone can listen in on Supreme Court oral argument as it happens. Yes, the public could previously go into the hallowed chamber, but only so many were able to obtain such privilege. Starting today, however, anyone with an internet connection can access the audio live. …
Sometimes I think people say outrageous things just to get headlines and feed their egos. Here’s the money quote:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
In re Troy Anthony Davis, 2009 U.S. LEXIS 5037, 7 (2009).
If you take that quote out of context, you might think that the esteemed Associate Justice is saying that it’s OK to execute innocent people. I couldn’t believe that even this guy would say something so crazy. I mean, the words are right there, but there must be something about the context of this statement that makes it make more sense. So I went and read the short opinion, it’s only a couple pages long. You know what? he is saying that we can execute innocent people – as crazy as that sounds.
Now let’s take just a quick step back and understand what we’re talking about. This is a murder conviction from almost twenty years ago. As the execution date nears, condemned Troy Davis is seeing a lot of new evidence come to light, which not only establishes his innocence, but may also indicate who was the actual murderer. Scalia’s point is: so what? If people get screwed by the system, that’s too bad. And if we execute an(other) innocent person, those are the breaks. It’s not a perfect system, and the fact that we may have found enough irregularity in this case to establish ‘actual innocence’ doesn’t matter. Everybody OK with that?
Paul Campos over at The Daily Beast offers additional illumination about why this is scary. It’s not that Scalia delights in the execution of innocent people, although that possibility can not be ruled out. It is the way he parades the law as an inflexible, quasi-mathematical standard from which we can never deviate that is so troublesome. So, if we have a rule that, in a given case, we find out is wrong, it doesn’t matter because the rule is the rule. People do not matter. Reality does not matter. Only the law and its brave defender, Associate Justice Antonin Scalia.
As I contemplate the way in which I over ate tonight (burrito night – too much of a good thing!), I can’t help but reflect on Ms. Lithwick’s observations about how smart people can act stupid. This regularly happens in connection with selecting Supreme Court Justices (and burrito night).
So we can expect a lot of stupidity and histrionics. Something just happens when the bright shining lights of the Judiciary Committee’s fancy chamber come on. I know that most of those senators like to be on TV.
After talking a big game about openness in government, Obama has changed his mind and is, apparently, going to oppose the release of more photos. These are photos of Americans torturing ‘detainees’ in several locations, not just at one ‘rouge’ facility. This is all coming out of the ACLU’s Freedom of Information Act request, so it is moving through formal, legal channels. The United States Department of Defense has already lost its appeal to the Circuit Court, which means there is only one place left to go – you guessed it! Paging Justices Scalia, Alito, Roberts, Thomas, et al.!
So, if Obama is going to keep these pictures secret, here’s the procedural posture, as reported in DailyKos:
Which leads us to today. By my calculations, the government has about a month left to file a petition for a writ of certiorari before the Supreme Court. As to whether the Court will review the opinion below, the question is generally whether the circuit court’s interpretation of the relevant FOIA exemptions or the Geneva Conventions created a split in the governing law with its sister circuits, or has otherwise “so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power” or otherwise presents “an important question of federal law that has not been, but should be, settled by this Court.” Put in other terms, the government needs four justices to believe that there are five justices who’d overturn the opinion below … and given the way the Court operates, the nine justices involved will include Justice Souter’s successor, whomever she may be.
So, first they have to decide if this is something they even want to look at – the all important ‘Writ of Certiorari.’ If the answer at that stage is yes, then the parties will file briefs, everyone else will file amicus briefs (just to have their two cents on the record), and argument will, eventually, be scheduled. The wheels of justice turn slow.
The post quoted above really does a nice job of laying it all out. The government’s argument (this dates back to the Bush administration) is that the lives of certain people may be put at risk if the pictures are made public. The appeal court, which has already sided with the ACLU in favor of disclosure, based it’s ruling, in part, on the government’s failure to identify specific people that might be harmed. The current administration is stuck with that argument. they can not now go back an argue that national security will be jeopardized. That issue is not part of this case. This is a perfect example of how the Courts work – they decide cases, they don’t make law.
And also, remember that they can’t now go and name the people who might be endangered. Once the case is on appeal, evidence is closed.
Justice will be served. It will be rare. It will be bloody. But it will be served, and we will be privy to every gory detail. This is what it means to choose a new Supreme Court Justice in this day and age. Law and politics are not supposed to go together – that’s why this is painful. And with the lifetime appointment, the chosen Judge will wield an enduring kind of power. Just as with the run-up to the election in November of last year, there will be another (though different) crescendo that will be made all the louder by the echo chamber, but I’ll offer more on that another time.
I have added the Slate.com – Jurisprudence category to my links. Emily Bazelon and Dahlia Lithwick are extremely sharp legal minds who who have the greatest jobs any lawyer could ever hope for. (There are also other writers in that section of the Slate stable, but I don’t know anything about them, yet.)
But it’s all so left-wing. I really need to break out of the echo chamber so I can, at least, understand the substance, scanty though it may prove to be, of the myriad smears that will undoubtedly follow Obama’s selection of the nominee. There’s also the chance that I may not agree with every aspect of the candidate’s judicial philosophy. Something tells me that National Review Online and Town Hall are not going to satisfy the need for a more scholarly critique.
This is, or will be, good theater. The media (including ‘new’) relish the story, the controversy, the drama that just keeps on giving. That’s how everyone was with the election, and I expect much of the same this summer. Beware the pundits! Don’t get sucked into the fake journalists who are really just talking heads starring in their own version of reality TV. For those folks, the Court doesn’t matter. Obama doesn’t matter. All that matters is their brilliance and beauty as they, oh so humbly, bring you this pivotal moment in history. Where would we be without them?!?
But I eat it up also. It’s exciting and important. The hearings might get rough, but there’s an excellent chance that no one will die. All the latest technology will be employed by both those ‘for’ and those ‘against’, but in the end it will come down to the ancient process set forth in our Constitution.
And, at it’s best, the debate will be philosophical and complex. If it is a current member of the bench, we will look at opinions and briefs and law reviews. Hey! That’s basically what I do for a living. Cool! Even if it’s not a current or former judge, we will still learn everything about this person. Everything she did in her life up until this moment is fair game – everything she ever said. And we will not be looking for those ‘gotcha!‘ moments. Hopefully, the Obama people are smart enough not to select a child molester for the high bench.
No, instead, we will look at the niceties of language and thought. At our best, we will want to learn how this person thinks and predict what this person will do within the highest ivory tower this country has. Supreme Court Justices don’t make policy or write law. I don’t care how far right or left anyone thinks a certain Judge may happen to be. Whether you like them or not, their job is to decide cases. The cases make the law, but the Judges can only decide cases.
So, in those realms where the debate is elveated above the feeding frenzy, we will learn about cases. In other places, the only case anyone will discuss or remember will be Roe v. Wade, but that is to be expected from media that is more concerned with entertaining you than enlightening you. But I will hear the names of vaguely remembered cases from law school, and I will run to look them up and I will discover, all over again, the wonder of our common law. It is a living thing that changes and grows all the time. That is not a partisan utterance, but rather a documented fact that I live with every day as a modest trial lawyer. Customs become molded into law by case decisions over the years, and then the old rules change and new rules come along as human thought is not a static process.
Enjoy the show, but don’t forget to listen and watch carefully. Everyone knows how important this is, but let us share a greater understanding of how it works – not just the selection process, but the actual job that must be done afterwards.
This is another great article from Salon.com. Rebecca Traister is not writing a premature obituary, rather, this is a celebration of the iron will and unique personality that shapes the greatest jurist of my lifetime. Please read the article.