Contempt

As Der Furor's "One Big Beautiful Bill" slithers its way toward near-certain approval by a politically neutered Congress, there's been a huge amount of discussion about its effect on tax rates, the national debt, and the ability of the federal government to provide the protections and services Americans have come to expect. It's clear that the bulk of the tax cuts will benefit corporate America and the wealthiest citizens, and that those cuts will be paid for (to the extent they are) by reductions that will disproportionately fall on the middle and lower classes. What's less clear is what else might be buried in the thousand-plus pages of the bill*.

Alert readers have noted that the bill includes this measure:

"No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section."

What does this complex and opaque language mean? Reduced to basic terms, it would forbid courts from finding administration officials to be in contempt of court when they ignore judicial rulings.

Contempt of Court is a fairly simple concept. Essentially, it is what gives teeth to judicial actions, ensuring that failure to abide by a court's instructions will have negative consequences. If a traffic court levies a fine on you and you fail to pay it, you can be found to be in contempt of court and punished. If a divorce court orders you to pay child support and you don't do it, you can be found to be in contempt of court and punished. But if the One Big Beautiful Bill passes as written, no one in government can be held in contempt for ignoring a legal judgement. 

That's bad, but it comes on top of an earlier slap at the rule of law, which states that there is one person who already cannot be held in contempt** - the president. According to the Supreme Court decision in the case of Trump v. United States,

"... the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts."

You may be excused for wondering how far the president's "core constitutional powers" extend. Does he have a core constitutional power to accidentally deport someone to a grim prison in El Salvador and refuse to bring him home once a court orders him to do so? Does he have a core constitutional power to eliminate agencies established by Congress? Does he have a core constitutional power to use his authority to attack individuals, law firms, and universities or to spew out childish, often nearly incomprehensible social media posts?

When I went to school, shortly after the dinosaurs died out, our civics classes*** taught us about quaint concepts like checks and balances and the rule of law.  

I wish they still did. And that more people cared.

Have a good day, and hope that honor, dignity, and common sense prevail to eliminate the protection-from-contempt provision from the bill. The country is ours to save.

More thoughts coming.

Bilbo

* The "One Big Beautiful Bill" is an example of what Republicans used to detest as an "omnibus bill," one that consolidated a large number of individual measures into a bill so long and detailed that nobody really understood what was in it. Times change.

** Of court, anyhow.

*** Do we even have civics education any more? And if they do, I wonder if they teach the same lessons in red and blue states.

The Supreme Court and the Seven Deadly Sins

I have long been fascinated by the Christian* tradition of the Seven Deadly Sins, and I've written several posts about them and their manifestation in the modern world. In case you're not familiar with the Seven Deadly Sins, they are

Pride - pride is considered the original and the worst of the seven deadly sins. It leads to irrational self-confidence, impulsiveness, and an unwillingness to seek or heed good advice. Vainglory (unjustified boasting**) is considered a form of pride.

Greed - an inordinate desire to acquire or possess more than one needs, especially wealth.

Wrath - uncontrolled feelings of rage or hatred, or a desire for vengeance for perceived wrongs.

Envy - sad or resentful covetousness towards the traits or possessions of someone else.

Lust - while we think of lust in the sense of intense sexual desire, it actually means an fierce desire for anything, such as money, power, or social position.

Gluttony - usually thought of in terms of gross overeating, it is the overindulgence or overconsumption of anything to the point of waste.

Sloth - indolence, laziness, or the habitual avoidance of exertion. Unlike the other six deadly sins, sloth is a sin of omission (the failure to perform ones responsibilities) rather than commission (of some act that is wrong or immoral).

It occurs to me that most of the conservative members of the Supreme Court reflect one or more of the Seven Deadly Sins:

Greed, Wrath, and Envy mark Justice Clarence Thomas. His eager acceptance of gifts and services from wealthy friends and patrons, regardless of the perception of ethical compromise, are clear examples of greed, while his disdainful refusal to even consider them to be a problem, and his accusation that those who point out such problems are motivated by racism rather than concern for justice shows wrath. He is also guilty of envy, which drives him to seek from questionably ethical sources the better things of life he believes his meager salary as a Supreme Court justice denies him.

Greed, Wrath, and Pride mark Justice Samuel Alito. Like Justice Thomas, Justice Alito happily accepts questionable gifts (greed), bristles at any criticism of his behavior (wrath), and clearly believes he's above criticism, anyhow (pride).

Sloth and Pride mark Chief Justice John Roberts. His foot-dragging reluctance to lead the court to a clear stand on politically difficult decisions (sloth) undercuts his role as the Chief Justice, while and his tone-deaf defense of a court that has a clear crisis of public confidence (pride) reflects a reluctance to deal with the obvious.

Lust and Gluttony seem to work well for Justice Brett Kavanaugh, although he's tried to keep his head down after the exposure of his college era drinking and sexual issues during his confirmation hearings. "I like beer" is not the sort of historic quote one expects to hear in that environment.

Sloth applies to Justice Neil Gorsuch insofar as his emphasis on "textualism" and "originalism" reflects a reluctance to deal with the intellectual and moral difficulty of interpreting a 250-year-old Constitution to account for political and social conditions its drafters never imagined.

I'm not sure yet which (if any) of the deadly sins Amy Coney Barrett represents ... so far, she's a bit of an unknown quantity, generally very conservative, but with sudden flashes of independence and a willingness to work with the liberal justices. If I update this post in the future, perhaps I'll have more of an idea. 

While I'm dumping on the conservative wing of the court, are the three liberal justices guilty of any of the Seven Deadly Sins? Not to the same extent as Thomas, Alito, Roberts, Kavanaugh, and Gorsuch, although I think that anyone who reaches a seat on the Supreme Court is at the very least probably guilty from time to time of the sin of pride.

And in less than a week, the Court must contend with a new president who embodies all seven of the deadly sins. This is not likely to turn out well.

Have a good day, and try to avoid the Seven Deadly Sins.

Believe me, I know it's hard.

More thoughts coming.

Bilbo

* Actual Christian, not Republican Christian.

** And who is the poster child for vainglory?

Black-Letter Law

In reviewing the story of the Alabama supreme court decision on the status of embryos being stored for in-vitro fertilization (IFV) treatments, I learned an interesting new term: "black-letter law" (also known as "hornbook law"), defined as 

"... standard rules that are generally known and free from doubt. The black letter law on any subject consists of the principles so fundamental in that subject and contained so frequently in hundreds of years of common law that challenging them would be extremely difficult."

This appears to be related to the legal principle, recently shredded by the U.S. Supreme Court, of "stare decisis" ("settled law"), which states that

"... courts will adhere to precedent in making their decisions."

Black-letter law may not be as black*, nor stare decisis as settled as we think, for the Supreme Court has also ruled that 

"... stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.”

But who decides whether a prior decision is "unworkable or badly reasoned," and on what basis do they make the decision? 

The waiver of stare decisis has allowed the righteous overturning of disastrous decisions like Plessy v. Ferguson, which sanctioned racial segregation in the United States. Unfortunately, it has also led to more questionable decisions such as the recent Dobbs decision that overturned the protection of abortion rights codified in Roe v. Wade ... the first time** a Supreme Court decision has taken away, rather than granted or reinforced a right. Where one can defensibly argue that Plessy v. Ferguson was "wrongly decided" based on Constitutional guarantees of equal rights (not to mention simple human decency), the decision to overturn Roe v. Wade - like the decision in the Alabama case - seems to have been based primarily on religious arguments of questionable Constitutional validity which replaced factual legal analysis and logic with faith-based theological dogma.

We are approaching a time when "black-letter law" is what the party with political control of the courts decides it is. The current Supreme Court, heavily conservative, is clearly willing to overturn settled law with which it philosophically disagrees, stare decisis be damned. 

Perhaps it is time to stop referring to "black-letter law" and start referring to "gray-letter law." The Scarlet Letter has already been taken, in a different context ... and if the GOP has its way, it may well be back.

Have a good day. More thoughts coming.

Bilbo

* I'm reminded of the wonderfully eerie short story "Absolute Ebony," by Felice Picano, about an artist's search for the ultimate, perfect shade of black ... and what comes with it.

** As far as I know.

Suggestions for Supreme Court Reform

If you are one of those people who holds quaint ideas that are no longer in fashion ... like, say, equal justice under law ... you've probably been incensed by the sudden rightward lurch of the Supreme Court and the shamelessly unethical behavior of some of the sitting justices. The questionably ethical acts of some of the justices, the fact that their lifetime appointments essentially place them above the law they oversee and interpret, the twisted reasoning behind some of their recent decisions, and their wholesale jettisoning of the doctrine of stare decisis has led to a crisis in the public's perception of a thoughtful and even-handed Supreme Court. This has, in turn, led to calls for changes to the structure and membership of the court*, and the imposition of detailed ethics requirements for the sitting justices. 

In April of 2021, President Biden chartered a bipartisan Presidential Commission on the Supreme Court of the United States (hereafter, "SCOTUS Study") to study the structure and function of the Supreme Court and make recommendations for changes that might be needed. The Commission issued its 294-page report in December of 2021 - a lengthy and well-argued document that provided excellent historical analysis and laid out numerous proposals for change along with their pros and cons ... but did not make any specific recommendations that might serve as starting points for action.

Because of the resounding positive response to my Immigration Reform Plan**, I've decided to go ahead and present

Bilbo's Initial Suggestions***

for

Reorganization and Improvement

of the

Supreme Court

1. Increase the size of the court from nine to 13, making the number of sitting justices equal to the number of US Federal District Courts. This would spread out the work of the Supreme Court among more justices, allowing them, when necessary, to take more cases and providing more time for consideration of cases and development of good rulings.

2. Apply the same ethics rules to Supreme Court justices that apply to all other federal judges. This is a complete and utter no-brainer, and can be imposed by Congress at any time. How anyone can possibly argue against this is beyond my imagination.

3. Eliminate lifetime appointments by establishing terms of service which are long enough to insulate individual justices from threat of removal other than for cause. This may be difficult to achieve without a Constitutional amendment, as the Constitution (Article III, Section 1) says that Supreme Court justices "shall hold their Offices during good Behaviour," which essentially means "for life, unless you do something so outrageously, blatantly, and offensively illegal that even the GOP couldn't stand the stench." I don't think this necessarily precludes term limits, because justices could still serve "during good behavior," but the terms would have to be long enough to satisfy those who believe that lifetime tenure insulates the justices from changes in the national political situation†. I suggest sixteen years, or the equivalent of four presidential terms; the SCOTUS Study suggested twelve- or eighteen-year terms. Justices who rotate out of the Supreme Court need not retire, but could be reassigned to vacant positions on other courts.

4. Stagger the terms of justices so that no more than two would be replaced by normal rotation in any single presidential term. This would help prevent presidents from stacking the court with ideologues, as happened under Der Furor.

5. Assign each case to a panel of seven justices randomly-assigned from the 13-justice bench. This will help prevent a single political or philosophical block from dominating all decisions, and the uneven number of justices would prevent tied decisions. The larger number of available justices in a 13-member court would also allow easier replacement of justices who must recuse themselves from cases to which they are assigned.

Those are my initial suggestions. None of them are new or original, but I think that, taken together, they are the ones that make the most sense. Of my five suggestions, only one - the ethics rules - can be done right now, and it should. Congress should seriously take up this issue, but as long as we have a divided Congress in which a noisily belligerent and authoritarian GOP wields outsized influence and would go all-out to protect its deeply conservative majority on the Supreme Court, there's no hope for change unless the Democrats regain control of both chambers.

Elections have consequences. We need to ensure that a Supreme Court that has - for the first time in history - taken freedoms away from us rather than protecting them is brought back to some semblance of fairness in the ideal of "equal justice under law." Think about this when you vote in this fall's general election, and especially when you vote for president next year.

Have a good day. More thoughts coming.

Bilbo 

* The Constitution does not mandate the size of the Supreme Court or the qualifications of its members, leaving that task up to Congress. Don't hold your breath waiting for Congress to take any action.

** Among readers of this blog, anyhow.

*** I was going to call it a "Plan," but I haven't worked out in my mind how it would be implemented ... thus, I'll just call it "Suggestions."

† We already know how well that has worked out for the nation, don't we?

Reforming the Supreme Court

There has been a great deal of discussion over the last year or two about reforming the Supreme Court. Exactly what that means and how it might be accomplished are being hotly debated, and there is - as always - a great deal of misinformation swirling around it. I have my own ideas, which we'll get to presently, but let's look at the history first.

The Supreme Court is established in Article III, Section 1 of the Constitution: 

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

There are two points to stress before we move on: (1) The Constitution does not specify how many Judges/Justices the Supreme Court will contain ... only that Congress will decide; and (2) The Constitution does not specify that an appointment to the Supreme Court is a lifetime job ... it says only that the appointees "shall hold their Offices during good Behaviour*." 

So, how did we come to have nine justices on the Supreme Court? The Judiciary Act of 1789 established the first Supreme Court, with six Justices: 

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum ...” 

Congress changed the number of justices on the Supreme Court several times for various reasons between 1789 and 1869, when the Judiciary Act of 1869 codified the current nine-justice court (a Chief Justice and eight Associate Justices, with six constituting a quorum). President Franklin Roosevelt tried unsuccessfully to add additional justices to the court in an attempt to advance his policy agenda, but this effort failed, and there has not been a serious attempt to change the size of the court since ... until now.

The present push to enlarge the Supreme Court began when Senate Republicans refused even to consider President Obama's nomination of Merrick Garland to the court, then pushed through the appointment of three new deeply-conservative justices** during Der Furor's administration ... including that of Justice Amy Coney Barrett, rushed through in that administration's last days in complete and shamelessly hypocritical disregard of the prior Republican justification for blocking the Garland nomination. 

The Court's sudden lurch to the conservative right, reflected in decisions that seemed to ignore both precedent and the evolving social and political environment of the nation, has rekindled the debate over the size of the Court and the tradition of lifetime appointments***. Incoming President Joe Biden issued Executive Order 14023 on April 9, 2021, directing establishment of a Presidential Commission to study the Supreme Court and make recommendations for possible changes or reforms, which commission released its draft final report earlier this month. Perhaps not surprisingly, given the political sensitivity of the topic and the present poisonous atmosphere surrounding the court and its newest members, the report identified and analyzed various options for reform and discussed their pros and cons, but did not make any specific recommendations.

I, of course, have my own ideas.

I think we can all agree that the authority and dignity of today's Supreme Court was badly damaged by the actions of Der Furor - whose routine desire to turn immediately to the Supreme Court to get his way on issues reflects his clear belief that the three justices he appointed are beholden to him alone, and not to the Constitution or the American people. The court's independence has also been seriously undermined by Congressional Republicans who bastardized the nomination and confirmation process to deny President Obama's choice, and have already stated that they will block any nomination made by President Biden. 

Given that any changes to the structure and function of the Supreme Court will be very difficult to achieve legislatively and will be angrily and bitterly fought by both sides, such changes are unlikely absent one party's control of the White House and of both Houses of Congress by overwhelming majorities†. Nevertheless, here's how I would proceed if the decision were mine ...

First, keep the court at nine justices. I think expanding it to include more justices working in rotating panels is probably a good idea that would allow more work to be done faster without compromising attention to legal detail, but it's just not worth cleaning up the mess left by all the exploding heads.

Second, if we are going to accept that the Supreme Court is the ultimate arbiter of what is and is not constitutional, nominees should be required to demonstrate a broad and deep knowledge of constitutional law.

Third, require Supreme Court nominees to be experienced judges who have served a minimum of six years on federal district courts.

Fourth, impose term limits on justices. Some have argued that this will somehow limit judicial independence, but I have yet to see a defensible argument about why that would be the case††. The term limits should be long enough to avoid turmoil on the bench, but short enough to allow each president to have an opportunity to nominate at least one justice in each four-year term. I believe a term limit of 18 years is reasonable.

Another interesting approach might be to rotate justices between the Supreme Court and the district courts, with no justice serving more than a single rotational term on the Supreme Court. This would ensure that Supreme Court justices have a practical understanding of the law as it is being applied by lower courts every day, as opposed how it was applied decades ago when they were appointed.

I believe that any of these measures would be an improvement on the situation we have now. The prospect of an America defined by decades of decisions made by the likes of Kavanaugh, Gorsuch, Barrett, Alito, and Thomas - who have already demonstrated their contempt for precedent and the evolving nature of American society, is terrifying.

Have a good day. More thoughts coming.

Bilbo

* "Good behaviour" is not defined, but I'm sure we all have our ideas of what it means. I'm sure that, for most Republicans in Congress, it would include standing naked on the steps of the Supreme Court and boffing a goat while waving a "Let's Go Brandon" flag. 

** There has also been extensive debate over the qualifications and temperament of the three newest justices (Gorsuch,  Kavanaugh, and Barrett), but that is beyond the scope of the present discussion.

*** Consider that Amy Coney Barrett, the youngest justice, is now 48 years old. If she remains in good health and follows the lead of the oldest justice to serve - Oliver Wendell Holmes, who retired at age 90 - she could be on the bench for another 42 years.

† Of course, should those majorities be Democratic, future Republicans will all but certainly refuse to accept the electoral results. 

†† I don't think anyone can argue that the current process limits judicial independence, when Der Furor clearly believes that "his" justices will do his bidding.

Legal Question

Perhaps one of my readers who is a lawyer can answer this for me ...

Earlier this year, we were involved in a civil court proceeding which, unfortunately, did not go the way we expected it would. In fact, we were astounded at the outcome which, in view of the evidence, made no sense. In the aftermath of the trial I learned an interesting and disconcerting thing when I called the office of the county Clerk of Court to request a copy of the transcript: there is no record of the trial testimony unless one of the parties to the affair pays to have it recorded. And not only that, even if such a record is made, there is no requirement that it be submitted to the court to be added to the official record of the trial. You can order a copy from the company that was hired to do the transcription, but at huge cost ... this on top of whatever the recorder was paid in the first place.

I don't know if this is a peculiarity of Virginia law and procedure or if it applies in other states as well, but I think it's awful. Without an official documentary record of the proceedings - by which I mean a verbatim record of the testimony and conduct of the trial, prepared by a disinterested court-employed or court-appointed recorder - how do we later reconstruct what happened and assess the basis for appeal? If one of the parties paid someone to make the recording, what guarantee is there that the recording is accurate?

So, all you attorneys out there ... how is it in states other than Virginia? I'm curious*.

Have a good day. More thoughts (and maybe other questions) tomorrow.

Bilbo

* Which rhymes with "furious," but that's not important now.

Jury Duty ... Again

You may remember last month, Dear Readers, that I was summoned for jury duty at the local Circuit Court. In Fairfax County, the way it works is that you are summoned to appear for one day. If selected for a jury, you serve until the end of the trial; if not selected, you are taken off the list of prospective jurors and are not eligible to be called up for three years.

Well ...

The same week I received the summons from the county court, I also received one from the US District Court for the Eastern District of Virginia ... a judicial double-header, as it were. The US District Court summons is a lot different from the local one: first of all, I'm on call for two weeks, rather than just one day; I had to call in after 6:00 PM last Friday to see if I was scheduled to appear today, and I have to call after 6:00 PM every day of the on-call period to see if I am scheduled to report on the following day. Today is the first day of my two weeks, and I don't have to report, but I'm still on the hook until September 1st.

I don't mind being summoned for jury duty, which is a small price to pay to live in the wonderful country I do. But I do wonder why the systems are so different.

For instance, on the day I was called up for Fairfax County, I reported to the jury assembly room at the courthouse, where my summons was scanned in by cheerful court officers. I was allowed to bring my phone and my iPad, and the room provided free Wi-Fi for the prospective jurors while we waited. At the US District Court, however, we are not permitted to bring phones or tablets or anything with a recording capability, which will make things difficult for those who haven't mastered (or who have forgotten) the art of reading actual ink-on-paper books and magazines. And, of course, being on call for two weeks makes it impossible to plan for any travel or daytime events during that period. AAARRRGGGHHH!!!

Well, I guess we'll see what happens. I'll keep you posted. If I miss one or more days of posts over the next two weeks, you'll know what happened.

In the meantime, if you are near the path of today's total eclipse of the sun, please be careful when you watch it ... your eyes will thank you.

Have a good day. More thoughts tomorrow.

Bilbo

Jury Duty

Yes, Dear Readers, yours truly has been summoned to report for jury duty at the Fairfax County Circuit Court today. I need to report to the courthouse early, so this will be a relatively short post.

Being summoned doesn't mean that I will actually end up on a jury ... just that I have to show up and be available for interview and possible selection to sit on a jury. If it goes like the last few times I was called up, I'll sit in the assembly room all day until a bailiff comes in, thanks those of us who haven't been selected, and tells us we can go home and be free for another three years, at which time we'll be eligible to be called up again.

Ah, well ... like paying taxes, it's one of the obligations of citizenship. And who knows? This time, I may even get selected! I'll let you know how it turns out.

Have a good day. More thoughts tomorrow.

Bilbo