A Wise Latina

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Democracy's Constitution / Heroes / The Supremes

Sonia Sotomayor has been a different kind of Supreme Court justice from the beginning.   At her confirmation hearing, instead of putting the Senate committee to sleep with platitudes, she told a male Senator that she thought a “wise Latina” might  have some valuable insights to offer in constitutional discussions. Then she ignored the  tradition for first term justices  to be  seen but not heard by  immediately joining in the colloquies  with counsel  during oral argument.

But, as Adam Liptak points out in this excellent article in  the New York Times, it was only  last term that  Sotomayor  showed how different a justice she could be.   http://www.nytimes.com/2016/07/05/us/politics/in-dissents-sonia-sotomayor-takes-on-the-criminal-justice-system.html  In so doing, she may have started to change the way we talk about constitutional law.  I sure hope so.

Liptak discusses several Sotomayor dissents from last term, but rightfully gives special attention to her dissent in Utah v. Strieff.  Let me give you some background on the case before letting you judge Sotomayor’s  performance for yourself.  Strieff involved a fact situation that has divided the Court for a long time.  A police officer stops and searches a citizen without any reasonable suspicion of illegal conduct.  This is a clear violation of the Fourth Amendment.  But in the course of the illegal search, evidence of illegal conduct is found which the State attempts to introduce at trial.  The defense insists that it be excluded because it stems from an illegal stop and search.

In Streiff, the State argued the evidence discovered, illegal drugs, should be admitted because it was not the product  of the illegal stop; it came from  the officer’s decision after stopping Strieff to check if he had any warrants outstanding and finding there was an arrest warrant outstanding for a minor traffic violation.  Only  then did he arrest Strieff and search him, finding crack in one of his pockets.  The defense replied that this argument was pure sophistry because checking  for outstanding warrants is a routine part of the stop procedure.  To allow such tainted evidence will only invite police to illegally stop and search innocent people. many guilty of no more than having dark skin.

The Court ruled in a 5-3 decision for the State.  Justice Thomas wrote the majority opinion which pretty much tracked the prosecution theory.  Justices Kagan and Sotomayor  wrote dissents which  echoed each other on the law,  but differed dramatically in presentation.   Sotomayor better understands that the defense position may have  logic on its side, but fails on an emotional level because it calls for a guilty person evading punishment.   Also what’s so terrible about the inconvenience of  being stopped  by a police officer just trying to do his or her duty?   Sotomayor wants us to understand– to viscerally feel– that, especially for a minority, a police stop constitutes much more than an inconvenience.

Here is Part IV of her dissent.  It’s a little long for the internet, but I don’t think you will find it boring:

SOTOMAYOR, J. dissenting

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014). The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This Cite as: 579 U. S. ____ (2016) 1 This Cite as: 579 U. S. ____ (2016) 11 SOTOMAYOR, J., dissenting involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Id., at 17, n. 13. The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this 12 UTAH v. STRIEFF SOTOMAYOR, J., dissenting manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015). By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. * * * I dissent.

After reading this dissent, my reaction was quick and clear– “I hear you!” And it was Sotomayor’s  skillful use of language  that brought me  beyond logic to  feel the innocent minority suspect’s pain.  That’s a great thing about words; they allow  us to understand things we have not  experienced. In her wonderful memoir “My Beloved World” Sotomayor tells us that she learned as a prosecutor that you  need more than logic to win.  You need emotion.   Now she has employed that same wisdom in writing a judicial opinion.

I am sure some readers may  agree that Sotomayor’s  prose is persuasive, but still  fear that her dissent is not sufficiently “judicial.”   Aren’t judges supposed to be above the fray?  While this is a reasonable objection  I think that it ignores some basic facts about the Supreme Court and the role of dissenting opinions. The Supreme Court is not a court in the traditional sense of one judge doing justice in one case. Rather it looks to the future and decides by majority vote.   Any decision can be overruled by a later Supreme Court majority.  A dissent allows a justice to show  why the present majority is wrong.   Sotomayor’s  audience here is not just her colleagues; in a democracy it also includes  her fellow citizens.  Is there any good reason why she  should not  use all the lawyer’s  traditional  skills  in making the most persuasive argument possible?


Guilty Til Proven Innocent– and Even After!

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BurLAWcracy / Repairing the System

Amy Albritton learned the hard way that the American criminal justice system assumes that those charged with crime are guilty, at least until proven innocent, and sometimes even after. This article from the New York Times Magazine sets out Amy’s experience in detail. http://www.nytimes.com/2016/07/10/magazine/how-a-2-roadside-drug-test-sends-innocent-people-to-jail.html) Amy, the divorced mother of two children, had a good job as the manager of an apartment complex in Monroe, Louisiana when she left with a new boyfriend on a get-away to the bright lights of Houston.

The nightmare began when her car was pulled over for changing lanes without signaling. The officer saw a “white crumb” on the floor of the car which he thought looked like crack cocaine. So he performed an on-the-spot drug test by placing the crumb in a vial of chemicals and noting the color change. He quickly determined it was cocaine and announced to Albritton, “You’re busted.”

This portable field test drug kit is commonly used by police all over the United States. Unfortunately, it is highly unreliable, routinely churning out large numbers of false positives, a fact the many arresting officers don’t know. Estimates are as high as one in three. That’s why the roadside tests are not admissible as evidence at trial in Texas or most other jurisdictions.

But they are good enough to be accepted as the basis for a guilty plea, and 99.5% of drug possession convictions in Houston are the products of plea bargains. Amy at first insisted on her innocence, but her court-appointed lawyer showed little interest. He advised Amy that her best course of action was to plead guilty to felony possession. The upside was that she would only spend a couple of weeks in jail instead of the two years she would serve if she went to trial and was convicted of felony possession. Albritton took the deal, served her term, and went back to Louisiana with a felony conviction on her record.

When she returned home she was immediately fired from her job for missing work; this resulted in also losing her apartment and her furniture. Then her newly acquired criminal record prevented her from finding another job as an apartment manager so she settled for a job as a clerk in convenience store.

Most jurisdictions never check whether the drug test that justifies accepting a drug possession plea is accurate. But, to its credit, Houston sends the evidence to a forensic lab to check whether it is really an illegal drug. When the lab tested the “white crumb” in Amy case, they found it was not cocaine or any other illegal drug. Most likely it was food debris. Amy had been wrongfully convicted

The lab emailed the District Attorney’s Office its conclusion, but nobody at the District Attorney’s Office remembers reading the email. Only when a reporter writing a story about drug convictions in Texas found to be based on inaccurate drug tests inquired if there were any such cases in Houston did the District Attorney contact the lab. The lab told them that there were 212 cases where the lab found the sample not to be an illegal substance, including Amy Albritton’s.

So long after her conviction, the District Attorney’s Office sent Amy Albritton a form letter informing her that she had been convicted on false evidence. Unfortunately, Amy never received the letter because it was sent to the address on Amy’s driver’s license when arrested, the apartment complex that had evicted her after the conviction. It was one of the authors of the New York Times story who read Amy’s file and tracked her down to give her the good news. Her immediate response was “I knew it. I told them.”

Amy’s experience is not unique to Houston. Nationally the situation is no better; probably it is even worse. The authors of the NYT article estimate that at least 100,000 people a year plead guilty to drug charges that rely on the same type portable drug test kit used in Albritton’s case. If one third of these tests are “false positives,” the American criminal legal system is inflicting injustice on a mass scale.

I don’t think that it’s sufficient to just feel sorry for the injustice caused Amy. We owe it to Amy and ourselves to understand how so many apparently innocent errors led to this sad result. Let’s review the facts. The officer who conducted the roadside drug test seemed to think it was state of the art science. The court-appointed attorney thought it cancelled out the value of Amy’s declaration of innocence, and the judge who accepted her plea never mentioned that Amy could move for a continuance until the “white crumb” had been tested in a professional lab.

It gets even weirder. The police lab that discovered the test was inaccurate in Amy’s case sent over 200 emails to the District Attorney’s office notifying them of convictions that were based on false evidence, but never checked up on what action had been taken. In turn, the Houston District Attorney’s office apparently does not read its emails, at least those that inform them they have convicted an innocent person. When finally notified of the injustice visited on Amy, the District Attorney sent her a form letter to an address it knew might be obsolete. That letter makes no apology to Amy for the mistake in Amy’s case or mention any action it will take to see that injustice rectified. It’s Amy’s problem what to do.

And yet Houston appears one of the more progressive jurisdictions in the country in criminal justice matters. What conclusion should we draw from this strange tale of incompetence? Here is what I fear has happened. A silent bureaucratic revolution has transformed the American criminal justice system. The system used to be run on a “rule of law“ model; the primary tool was the jury trial and the reigning assumption was that those accused of crime were innocent until proven guilty. Remember the old maxim “better that ten guilty persons escape than one innocent suffer.”

But our national embrace of the “war on crime” has slowly transformed the system. The rule of law model still operates in some cases, like those of hedge fund tycoons and police officers charged with shooting minority suspects, but in the vast majority of cases it has been replaced by a robotic burLAWcracy more interested in generating large numbers of convictions than getting the right result in each case. Now the primary tool for resolving cases is the “voluntary” guilty plea aided by high bail fees and the threat of draconian sentences for those who dare demand a trial. Innocent defendants like Amy feel they cannot afford to ask for a trial. Cases like Amy’s are seen as acceptable “collateral damage” in the larger war effort.

And the innocent victims are the most vulnerable; in Houston almost 60% of the “bad” guilty pleas for drug offenses involved African American defendants, although African Americans only make up a little over 20% of the population. Amy is white, but her car had an out-of-state license plate. I have to wonder if Texas plates might have protected her from being pulled over for changing lanes without signaling, and the ordeal that followed.

You might ask what happened to the old “better that ten guilty persons escape” philosophy. I think it’s been the victim of death by willful ignorance. Houston authorities must have known of the weakness of the portable drug test kit; otherwise they wouldn’t have sent results to a professional lab to be checked for accuracy. But no one spoke of the test’s weaknesses, read unwelcome emails, or checked up on whether errors discovered had been remedied. The system just kept rolling out more guilty pleas.

Some people will call burLAWcracy a modern innovation in pragmatic problem-solving. But I like the ring of the phrase “with liberty and justice for all.” The criminal justice system should work at least as hard at protecting the innocent as it does punishing the guilty.

“Fight BurLAWcracy!”

Let me know what you think.

My Favorite Villain

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Book/film List / Legal Fictions

Better Call Saul’s Jimmy McGill (Bob Odenkirk) has a lot of qualities I admire. Jimmy is smart, funny, and irreverent, both a friend to the underdog, and a plague on the pompous. What’s not to like?

Still I’m starting to have my doubts about Jimmy. Somehow I feel that he is headed for a bad end. Actually, it’s more than a feeling. Since, like many of us, I have watched Breaking Bad, I know that Jimmy later morphs in Saul Goodman, Walter’s White’s outlaw lawyer who uses his creativity and charm to help Walt spread deadly metamfetamines all around the Southwest, violating both ethical canons and criminal laws in the process. It’s evidence of showrunner Vince Gilligan’s genius that Better Call Saul shows Jimmy as more than an apprentice felon.

Instead Gilligan portrays Jimmy as a tragic hero– a good man eventually done in by the very gifts that make him special. In Season 2 of the series the self-destructive side of Jimmy’s personality starts to appear. Take the “bonus” incident from Episode 7. Earlier Jimmy’s legal career had been revived by a generous offer of employment from a law firm whose senior partner Cliff Main (Ed Begley, Jr.) admired Jimmy’s creativity.

But even though the firm gives Jimmy a generous signing bonus, a fancy car, and an expensive apartment, things quickly go awry. Unhappy with a television advertisement Jimmy airs without notice to the partners, the firm puts Jimmy on probation and assigns a junior associate to “babysit” him. Incensed by this disrespect Jimmy decides to resign, but then realizes that if he quits, he must pay back the bonus.

Jimmy nimbly changes course; he campaigns to be fired. He starts by wearing outlandish outfits to work, attire he knows will offend the partners’ sense of propriety. Then he stops flushing the community toilets as part of an alleged campaign to save water, knowing full well that a public discussion about restroom etiquette will embarrass his uptight colleagues. Finally, he buys a second hand bagpipe and starts using the firm’s offices as a rehearsal hall during working hours. This ploy is especially clever since it allows him not only to disrupt business, but also to parody senior partner Main’s own inexpert attempts to play the guitar.

Jimmy wins. Main fires him and Jimmy keeps the bonus. But since he doesn’t really care about money, Jimmy’s only victory is proving that he is indeed smarter and hipper than his conventional colleagues. But even this is a hollow victory because the intended targets of his ridicule don’t even get the joke. They just think he’s a jerk.

Of course, the “bonus” incident is small potatoes, but soon Jimmy goes further, actually doctoring a legal document in order to give his friend/lover/ partner Kim Wexler (Rhea Seehorn) a leg up in a competition for a client. This is clearly unethical and maybe criminal as well. Jimmy claims he only wants to help Kim secure a client she deserves. While Jimmy was protective of Kim, he also had other scores to settle. The firm competing with Kim happens to be one Jimmy feels had mistreated him in the past. And the victim of Jimmy’s ruse was Jimmy’s older brother, a partner in the firm who failed to support Jimmy in his dispute with the firm. It was about more than an injustice to Kim, it was also payback for past wrongs and an opportunity for Jimmy to prove (to himself) he’s the smartest guy in the room. We start to see Saul Goodman appear on the horizon.

In many ways, Jimmy is a good example of what I call in the book Guile is Good a “trickster lawyer.” https://guileisgood.com/guile-is-good-the-book/ The idea is that many talented lawyers resemble the Trickster of myth and fable who uses creativity and guile to best adversaries. I intend the trickster as a positive image for lawyers. The Trickster Brer Rabbit uses wit to escape becoming Brer Fox’s dinner. A trickster lawyer like Gerry Spence showed a similar creativity in crafting his masterful final argument in the Karen Silkwood case.

But sometimes Tricksters are too smart for their own good. They become so obsessed with showing their cleverness that they take self-destructive actions. One example might be doctoring a document that could easily end with the loss of your license to practice law. The legal imagination is a wondrous thing, but you have to know when and toward what ends you want to use it. Our final sighting of Saul Goodman on Breaking Bad finds him working behind the counter at a fast food outlet in Omaha, Nebraska wondering if the next customer will be a DEA agent or a mafia hit man. This is where his cleverness has led Walter White’s brilliant consigliere. And that’s also where Jimmy will end up.

Well-crafted fictions like Beter Call Saul inform as they entertain. There is no scarcity of lawyers in real life who are so delighted with their own deft moves that they have no awareness of how their behavior affects others, or even themselves. And most of them don‘t even have Jimmy McGill’s sense of humor.

Constitutional Law in 500 Words or Less

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The Sjupremes

Everyone knows that constitutional law is very important, but most people don’t understand why. I think the recent Texas case on abortion teaches us why it is so important– and so controversial. http://www.nytimes.com/2016/06/28/us/supreme-court-texas-abortion.html

Texas passed a law setting out new requirements for abortion clinics. Now clinics would have to employ a doctor with admitting privileges at a local hospital and buy additional expensive medical equipment. Texas claimed it was trying to make abortions safer, but abortion providers responded that the new requirements would in fact force most clinics to close. The number of clinics throughout Texas would drop from over 40 to 8 or 9.

A clinic sued in federal court, claiming that the requirements violated their patients’ “liberty” to choose an abortion under the Due Process Clause of the Fourteenth Amendment. The Supreme Court decided the case by applying a rule distilled from the constitutional text and prior court decisions—Did the new Texas law place an “undue burden” on the patients’ right to choose an abortion?

In answering this question, the Court looked at the goals Texas claimed the law would achieve and how well it achieved them as well as the obstacles it placed in the way of women seeking an abortion and how serious these obstacles were. Balancing these considerations a five member majority decided that the law was a “substantial obstacle” to the women’s right to obtain an abortion which in turn resulted in an “undue burden” on the protected liberty. The Court held the Texas law was unconstitutional.

The decision is controversial because the key terms in the Court’s opinion (“undue burden” and “serious obstacle”) themselves do not appear in the constitution. These vague phrases are the creations of the justices who also decide what they mean in a particular case. The majority could have just as easily determined that only laws creating an “overwhelming burden” on the woman’s choice violate the constitution. If they had, Texas would have prevailed.

No one can deny that, for all practical purposes, the justices decide what the constitution means. We are told this is “undemocratic” and in a sense it is. But the Constitution was passed in part to protect certain rights, like individual liberty, from democratic abuse. So, since the constitution cannot interpret itself, the Founding Fathers came up with a neat compromise. Supreme Court justices do not stand for election like presidents and senators, but they are appointed by presidents and confirmed by senators who are elected.

That is also why the election in November is so important. Different president, different justices. Different justices, different constitutional law. (429 words)

Irreversible Errors

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Repairing the System / Repairing The Systen

Thomas Thompson was executed by lethal injection eighteen years ago this month at the age of 43. After you read my post from a year ago I think you will agree that there is an excellent chance that Thompson never committed the crime that triggered his death. https://guileisgood.com/2015/06/15/some-judgments-are-too-final/

My brother, Quin Denvir, was Thompson’s lawyer. Shortly before his death, Quin wrote Governor Brown asking that he end executions in California. http://www.sacbee.com/news/politics-government/capitol-alert/article68540477.html I know that, as he wrote that letter, Quin was thinking very much about what had happened to Tom Thompson.

Brown was against the death penalty as a young man. Maybe it’s time he acts to foreclose irreversible errors in the future. You can contact him to tell him that you hope he will commute the sentences of those now on death row. https://govnews.ca.gov/gov39mail/mail.php

“Gimme Shelter”

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Repairing the System

A couple of months ago I happened to be walking through San Francisco’s skid row and noticed a beautiful old church. I decided to look inside. At first my eyes were drawn towards the altar, but then I noticed someone sleeping in one of the pews. As my eyes became accustomed to the darkness, I realized that almost the whole church was filled with sleeping bodies.I asked myself “Why are all these people sleeping in a church at 11 o’clock in the morning?” Slowly the answer dawned on me—because the church is locked at night.

This month activists are mounting a campaign in San Francisco to make the homeless more “visible.” My experience in that church not only made the homeless more visible, but also less abstract. They are people who have nowhere to lie down at night and nowhere to hang out during the day.

Here is an article that shows how San Francisco could actually solve the problem. http://projects.sfchronicle.com/sf-homeless/supportive-housing/

The Heart as Well as the Head

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Guile is Good! -- the Book (excerpts) / Heroes

“The brain may devise laws for the blood, but a hot temper leaps o’er a cold decree.” (Merchant of Venice,Act I Scene ii, ll. 18-19)

Shakespeare here voices a view of the relationship between reason, passion, and law that still rules our discussions today. Law and reason are partners; passion is their enemy. This image supports the idea of the lawyer as a “cool” technician creating sophisticated legal schemes much like a computer engineer spins out a new algorithm.

But I wish to propose a different image of law, one in which reason and passion are partners in law’s creation. Passion energizes reason which in turn educates and refines passion’s hot temper. The operative word is “synergy,” not opposition. That’s why I believe that the practice of law is most fulfilling for lawyers who feel they are using their skills to accomplish goals their hearts approve. And perhaps that is also why we often hear that highly paid lawyers in elite firms are not as happy in their work as one would expect.

I think this story from Brown v. Board of Education is a good example of the reason-passion partnership in action. Brown is now universally acclaimed as one of our greatest legal and political accomplishments as a nation. But it was anything but a done deal when the Supreme Court heard arguments in the case. One major problem facing Thurgood Marshall and his colleagues as they prepared their briefs was how to answer a question the Court had specifically requested the parties to address: Had the Congress that passed the Fourteenth Amendment intended to ban segregated schools?

It was a difficult question for Marshall and his team to answer because there was some circumstantial evidence that seemed to support the conclusion that the framers had no such intention. John Bingham was the primary author of the text of the Fourteenth Amendment. He also was the author of the original text of the Civil Rights Act of 1866 which outlawed “discrimination” as well as other practices. But when opponents of the Civil Rights Act charged that its “discrimination” language would apply to segregated schools already in existence, Bingham agreed to remove the “discrimination” language from the Act to assure its passage. If Congress, including Bingham, did not intend the Civil Rights Act to apply to segregated schools, why would we think they intended the Fourteenth Amendment’s Equal Protection clause to do so?

At first Marshall and his legal team could not think of a persuasive answer to that crucial question. But they refused to concede it. Marshall insisted that his colleagues find an answer that would reconcile an expansive reading of the Equal Protection Clause, which was necessary for victory in Brown, with Bingham’s concession that segregated schools did not violate the Civil Rights Act passed by the same Congress.

Here’s how one participant said the team saw their task:
“It was not that we were formulating lies; there was nothing as crude or naïve as that. But we were using facts, emphasizing facts, bearing down on facts in a way to do what Marshall said we had to do.” Suddenly, the answer appeared. (“It was like lightning breaking through.”) Bingham agreed to remove the “discrimination” language from the Civil Rights Act because the Fourteenth Amendment’s Equal Protection Clause made it unnecessary. One purpose of the Fourteenth Amendment was to authorize the Civil Rights Act, but another was to go beyond it to ban all state deprivations of equal protection.

Now Bingham’s concession did not undermine a broad reading of the Equal Protection Clause; it supported it. Upon reflection the team came to believe that this argument not only fit their purposes, but was also true.

Passion did not “leap o’er” reason in the Brown case, it directed reason towards a legal conclusion that that satisfied the heart as well as the head.

Note: I discuss Thurgood Marshall and his legal team’s performance in the Brown case at greater length in the book Guile is Good. https://guileisgood.com/guile-is-good-the-book/

Woman Bites Dog!

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You know the well-worn story of the would-be reformer who comes to office only to discover that “real” reform is “unattainable”; the pragmatic decision in the “world of the possible” is learn to accept a half loaf or less. But here’s a new story. Kara Stein, a new appointee to the Securities and Exchange Commission (SEC) either never received the “world of the possible” memo, or has decided to disregard it.

This editorial from the NYT tells how three big banks recently pleaded guilty to felony charges arising out of their attempts to rig the world currency markets, but in reality came out unscathed because the fines imposed were insignificant to these titans of finance compared to the illegal profits they gleaned from their violation of the law. To make things worse, the SEC refused to impose any meaningful administrative disciplinary punishment. The only encouraging sign was that one commissioner wrote a “scathing” dissent. http://www.nytimes.com/2015/05/23/opinion/banks-as-felons-or-criminality-lite.html?ref=opinion

That commissioner was Kara Stein. This article from Bloomberg gives us some more information about Commissioner Stein. It turns out that she helped write the Dodd-Frank legislation that was designed to prevent large corporations from engaging in anti-social activities like rigging currency markets. When “moderates” on the commission told Stein that the Dodd-Frank legislation did not give the SEC authority to rein in banks in cases like these, she politely told them that was not true. The SEC’s problem was not a lack of legal authority, but a weakness of political will. http://www.bloomberg.com/news/articles/2014-07-21/ghosts-of-2008-haunt-sec-s-outsider-pushing-tough-rules

Kara Stein is the type reformer we need today. She knows her stuff and is faithful to her principles. And to top it off, she’s not only a lawyer, but to my delight also a former law professor, a member the law professoriate, that under-utilized army of potential law reformers. Let’s hope that her scathing dissent is the first step on the road to future victories in the war to rein in corporate power.

Thurgood, Tony, and Quin

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My brother Quin died last week. The death of a sibling may not sound like an appropriate topic for a law blog, but, as this obit makes clear, http://www.sacbee.com/news/local/article81833267.html , Quin was not only a lawyer, but a very special one.

Quin is best remembered for saving the Unabomber’s life against his client’s wishes. But mostly his practice was appellate in nature. It included three arguments in the Supreme Court, more than 25 arguments in the California Supreme Court as well another 25 in the Ninth Circuit Court of Appeals. Most of these cases involved challenges to the death penalty on behalf of indigent clients.

But I will remember Quin as much for his attitude as for his skills. A friend recently told me of her first sighting of Quin in court almost forty years ago. She was in a Salinas courtroom waiting to argue a case when her attention turned to a public defender arguing a routine criminal motion. She couldn’t help but admire the zeal with which he presented his arguments even though the judge was clearly unsympathetic. She couldn’t resist asking a colleague who the zealous advocate might be. “That’s Quin Denvir.”

That was Quin Denvir in every case he ever handled. On this blog, I sometimes call attention to lawyers who I think of as heroes for their attempts to create a less unjust world. Two excellent examples would be Thurgood Marshall and Tony Amsterdam, lawyers who have dramatically changed the American legal landscape for the better.

It might seem presumptuous to link my brother’s name with these legal superstars. And I don’t claim that my brother was a second Thurgood Marshall. But with regard to attitude, the three are peas in a pod. Each took great pride in being a lawyer, and each felt it was the lawyer’s great privilege to be able to employ his or her talents to see that the underdogs in our society did not become its victims.

Quin’s career should be an inspiration to all of us. I know it is to me.


Getting to “Hopefully”

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Book/film List / Legal Fictions / Repairing the System

Reading the slick new law novel The Neon Lawyer (http://www.amazon.com/Neon-Lawyer-Victor-Methos-ebook/dp/B00K7MCE3C) persuades me that that recent law school grads might well think that law is the most embarrassing profession.

Consider, first, the reaction of peers. Imagine a newly minted lawyer meeting someone he or she hopes might become a friend. In the flow of conversation, the lawyer mentions his or her profession. The interlocutor responds with a small enigmatic smile and the comment. “How interesting!” Think of the following meanings the neophyte lawyer might reasonably attribute to that comment: a) “Greedy bastard”; b) “ How dumb can you be to rack up 100k in debt for guaranteed unemployment?”; c )“About as interesting as brushing your teeth;” or d) “All of the above.”

And then consider the embarrassment of sending out your CV to about 300 firms who you know receive about 300 CVs a day that bear a striking resemblance to your own. And if you do finally get paid employment (it happens) and get to represent a flesh and blood client (less likely), you face the embarrassment of recognizing the chasm between the skills you learned in law school and what is necessary to provide competent legal representation. And if you fail to recognize your incompetence, your senior colleagues in the profession, especially judges, will feel it their duty to make your aware of it.

But maybe the greatest embarrassment is trying to explain to experienced practitioners why you feel that a lawyer has a duty to do everything possible to help the client, even things that don’t make much economic sense.

The Neon Lawyer’s hero Brigham Theodore, suffers all these indignities and more in the comic tale Victor Methos tells of the psychological trials of starting a legal career. But Theodore also discovers that once you learn to take your profession and yourself seriously, the practice of law has its satisfactions, including the gratitude of clients who know you are really trying to help them and the sudden realization that law school provided you analytical skills that permit you to fashion some very creative and persuasive arguments.

The Neon Lawyer is meant to be a quick read—tracing the transformation of its naïve, idealistic protagonist from disillusioned law student to effective advocate. The plot and characters resemble John Grisham’s The Rainmaker in perhaps too many ways, but I think there is always room for one more story of the underdog coming out on top.

Even though the book is very funny, it also takes a critical perspective on the contemporary legal system. The system is stacked in favor of status and wealth and not much concerned about ensuring that justice is done to poor defendants. It’s this bureaucratic indifference rather than bad motives that threaten to put Theodore’s client Amanda Pierce behind bars for life.

But the legal outsider Theodore beats the insiders at their own game. Of course, a law story with a happy ending can always be faulted for not being “true,” but I think Methos has a good reason for telling a story that doesn’t often take place in real life. He’s trying to introduce his readers to another dimension of “truth”—“true” in the sense of “to your own self be true.”

A key scene in the novel is when Theodore’s “outlaw” lawyer boss, Tommy Lenin, proposes an unconventional barroom “toast” — “Here’s to hopefully.” Young Brigham lifts his glass, but has no idea what the toast means. But by the end of the novel Lenin’s meaning is crystal clear. Lawyers who represent the society’s underdogs need a sense of hope as much as they need skill. I mean “hope” in the sense of “hopefully we will draw a sympathetic judge.”

Let’s face it. If you can’t imagine a possibility of “winning” in the sense of improving your client’s situation, you are probably not doing yourself or the client a favor by moving forward. The necessary first step is getting to “hopefully.” Once Brigham starts to think of moves that have a realistic hope of succeeding, good things start to happen for both him and his client. Fighting, and perhaps losing, battles you believe in sometimes makes more sense than winning ones you don’t.

“To Hopefully.”

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The Judge Speaks Her Mind

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Book/film List / Legal Fictions / Repairing the System

The most interesting, yet distressing, person I have encountered this year is Judge Celia Day. Judge Day is a federal district court judge in Manhattan and one of the characters in Lawrence Joseph’s small classic Lawyerland, a “non-fiction novel” of interviews with lawyers in New York City. The book is fiction in that the names of the characters and the settings of the interviews are fictional in order to provide the interviewees “cover” to be candid, but the interviews are factual in their content.

All the interviews are fascinating, but Judge Day’s comments are the most memorable. For instance, this sitting federal judge dispassionately warns us not to “count on the courts.” “Real power doesn’t exist in the courts.” While judges do have a little discretion, “there’s a big difference between having a little discretion and having real power.” I must admit that this statement shocked me because I have always thought that judicial discretion to rule for one side or the other and to fashion the relief ordered was a significant power.

But Day later tells, again dispassionately, a story that I think proves her point. The next morning she is scheduled to sentence a forty–five year old woman who has pled guilty to conspiracy to murder her husband. Day then explains some of the circumstances. It was an “arranged” marriage. The couple had two children, but all the sex was forced,“ugly stuff.” The husband has never disputed these allegations. But there’s more. Every time the woman has appeared in court, her husband has been at her side, and during recesses they converse like any married couple. So Judge Day does have a little discretion in setting the prison term, but no real power to order a just result.

Day is no fan of the law. We are ruled by politicians “each backed by his own small army, and I mean army, of lobbyists and lawyers who haven’t the slightest care for what happening in people’s lives.” Lawyers are a big part of the problem since their job is to lie. “It’s inherent in the process…. Lawyers know too much. If you know too much, how don’t you lie?” But the lawyers are just doing their job. And Day fears that the root cause of the law’s failure is deeper than politicians and lawyers. “What if”, she muses,”the law we have is the law we deserve?”

But even though Day is very critical of the legal system as a whole, she makes no apologies for her role as a judge. “I am not the law. I interpret the law and enforce it.” She thinks this is a doable job “if you keep your personal predispositions under control.” This tendency to blame the system but not yourself is one Judge Day shares with the other New York lawyers interviewed in Lawyerland. They all are quick to point out the legal system’s dysfunctions, but seem pleased with their own professional role.

I find this very human tendency to absolve oneself of blame dispiriting. Here we have an elite who are major players in a process that provides them both prestige and a comfortable income, but who take no personal responsibility for how well it operates. It’s especially discouraging when the judges who tend the supposed altars of justice seem to have lost their faith in law.

I applaud Judge Day for her intelligence and candor. We need to know the system is broken if we hope to repair it. Still I fault her passivity. She is too much a spectator. She may not be the “law,” but her judgments embody it for those who come before her. A cry of despair is not the only possible judicial response to a failed system. Earl Warren, a former district attorney, was no stranger to the criminal legal system’s shortcomings, but as Chief Justice, he worked to remedy them. And, closer to home, Judge Jed Rakoff, Day’s real life colleague on the Southern District, has used his office as a bully pulpit to educate citizens on the need for reform. https://guileisgood.com/tag/plea-bargains/

Judge Day seems to think that the legal system is forced to handle social problems it cannot solve, and that may be true in some circumstances like the arranged marriage/rape case, but there are more situations where the social problems are caused in whole or in part by our ineffective legal system. Think of racial discrimination and government spying, to mention just two. That’s where judges should stop complaining and start doing their job.

Dispassion is a virtue in analyzing a problem, but, as the song says, to solve problems, “you gotta have heart.”

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The Right Choice for the Wrong Reason

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Democracy's Constitution / Repairing the System

In an earlier post I discussed Senate Majority Leader Mitch McConnell’s decision to refuse to even to hold hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. That post generated a good deal of interest. So I would like to look now at the Garland nomination from the Democratic perspective.

Obama’s motives in nominating Garland do not appear much different from McConnell’s in opposing him; he too was looking at the nomination’s effect on the November presidential election. Obama wanted to make the Republicans an offer they could not accept. He predicted that the right-wing GOP would not accept any nominee he put up and that they would pay a political price in November for that refusal. Subsequent events seem to be proving him right; the Republicans have so far refused to schedule a hearing on Garland and the polls show that the voters think less of them for that fact.

But from a larger political perspective I think Obama miscalculated. Even though the Republican obstructionism is unpopular, it is unlikely to have much effect on the election results. More importantly, since it is becoming increasingly clear that Hillary Clinton will easily defeat either Trump or Cruz in November, the chances of appointing a liberal would have improved if he had stood pat and allowed Hillary to nominate a candidate in January. As it stands now, the Republican Senate can deprive Clinton of that opportunity by awaiting the results in November, and if Clinton wins, quickly confirming the moderate Garland.

But even if Obama’s nomination of Garland turns out not to be clever as a political move, I think from a constitutional perspective he made the right choice. Garland, as this NYT article points out, has all the qualities we value in a judge. http://www.nytimes.com/2016/03/27/us/politics/merrick-garland-obama-supreme-court-nominee.html?_r=0

The public now sees the Court as a politicized institution and that has to stop. If the Court is to fulfill its constitutional role, it needs to be staffed by judges who take office without a scripted ideology. Younger readers may not be aware that the New York Times did not always break down a close Supreme Court decision according to the number of justices in the majority who had been appointed by a president of one party or the other. That we now do such a political tally is a bad sign for health of the Court. When justices are seen as mimicking the policies of the party that nominated them, the justification for constitutional judicial review disappears.

Bush v. Gore is the most prominent example. No serious constitutional expert could claim with a straight face that the Republican-appointed majority in that cause would have ruled the same way if the names of the plaintiff and the defendant had been reversed. But Al Gore was not the only loser; the Supreme Court as an institution also took a big hit. The fact that it was the self- proclaimed apostles of “judicial restraint” who did the damage only further undermines the public’s confidence.

Obama‘s nomination of Garland should be seen as a recognition that a Supreme Court justice is a judge, not a politician in robes. And should Senator McConnell after the election change his mind and support Garland, we should applaud him for this display of statesmanship. I suspect that if Garland has not been confirmed before she takes office, President Clinton will find it politically very difficult not to submit his name again. If she does, we should applaud her for setting the right example for future appointments by future presidents.

I recognize that many people I respect will vehemently object to my “moderate” plan. Let me anticipate two such objections. The first would argue that the appointment of “moderate” justices will lead to, at best a do-nothing court, and perhaps a reactionary one. I think this argument ignores the historical fact that often justices who were deemed “moderates” when appointed have written the opinions in the cases liberals most celebrate: Justice Warren’s opinion in Brown v. Bd. Of Education, Justice Blackmun’s opinion in Roe v. Wade, Justice Powell’s concurrence in Bakke, and Justice Kennedy’s opinion in the same sex marriage case.

All these justices were appointed by Republican presidents, as were liberal heroes Brennan, Stevens, and Souter. The fact is that “moderates” often have a more open mind than ideologues which permits them to “evolve” to positions they did not previously hold as they are exposed to more information. Also their support makes controversial decisions easier for other justices to support. When Justice Warren, a former Republican District Attorney, supported broader constitutional protections for criminal defendants, he reassured other justices that the reforms would not destroy our system of justice.

A second objection would argue that, even if good in theory, my plan that presidents appoint justices who should be minimally acceptable to the other party would be suicidal in practice because Republican presidents would continue to appoint right-wing ideologues. It is true in recent years Republican presidents haven done just that with the appointments of Justices Thomas, Scalia, and Alito. But the Democrats only have themselves to blame for those justices because a major political party that takes its constitutional responsibilities seriously should have no trouble blocking the confirmation of an openly ideological nominee.

The dream of rigging the Court in our favor is a seductive one. But we must recognize that our political enemies have an altogether different dream in mind. Best that we remember that for the Court to do its job it is necessary that it seen as impartial. No one wants to appear before a judge who has decided the case before he or she takes the bench.

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