Category: Courts

FOR RIGHT-WING IDEOLOGY, IT’S OUT OF THE SHADOWS AND ONTO THE BENCH

As a proud member of the Liberal Geezerhood, I have lowered my imaginary flag to half-mast in the melancholic recognition that, for the rest of my life, America’s federal judiciary will be in the hands of a right-wing cabal. The Supreme Court is on the cusp of having a rock solid conservative majority, which based on actuarial tables, will keep growing long before it dissipates. Two appellate circuits have already flipped to the right, and another two are on the verge of doing so.

Yet, as a life-long student of the political process, I can’t help being impressed with the skill, chutzpah and dogged determination behind a quiet, 36-year revolution that very few of us saw coming – until it was too late. When it comes to effective organizing principles, this amazing coup d’état could teach the left a thing or two.

We baby boomers grew up taking for granted that the role of the Supreme Court was to give life to the Constitution’s noble-but-ambiguous aspirations, core values like “equal protection”, “due process”, and “right to counsel”. Through those principles, we saw the court put an end to school desegregation, allow women to have access to contraceptives and abortion, require states to provide attorneys for low-income criminal defendants and prohibit police interrogations without advising suspects of their right to remain silent.

Meanwhile, a handful of ultra conservative lawyers and law students stewed quietly over what they saw as an overly activist judiciary and a liberal bent in most law schools. In 1982, that angst gave rise to something called the Federalist Society for Law and Public Policy Studies, a name far more elegant than either its origins or mission warrant. According to most histories of what is now known simply as the Federalist Society, the germination began with small chapters of disaffected and extremely conservative law students at Yale, Harvard and the University of Chicago. They felt disenfranchised by what they saw as an overly liberal legal profession and gathered together to share in that bond. With the help of some of the right’s most well-known attorneys, including Edwin Meese and Robert Bork, the movement quietly evolved into a pipeline aimed at mainstreaming conservative legal thought and producing an army of Federalist Society judges that could turn American jurisprudence on its head.

Today, the Federalist Society has 70,000 members, chapters at more than 200 law schools and over $25 million in net assets. Their patron saint is the late Justice Anton Scalia, revered by the society for his “originalist” approach to interpreting the Constitution. Once an outlier in judicial thought, originalism endeavors to freeze the Constitution at whatever strictly constructed meaning it had back in 1787. Since the founders back then were not thinking about things like abortion, racial segregation or gay marriage, then today’s courts should stay clear of all such current controversies. Or so the Federalist Society believes.

The truth, however, is that originalism is a cheap intellectual illusion intended to mask the brazen political goals of right-wing ideologues. After all, it was Scalia himself who, in a landmark gun rights case, found a private right to own a pistol in Second Amendment language that speaks of bearing arms in the context of a “well-regulated militia”. A credible argument perhaps, but one that stabs a dagger through the heart of originalist purism.

Here’s how fast the Federalist Society and originalism have evolved: When George W. Bush nominated now Supreme Court Chief Justice John Roberts, the White House insisted that the nominee “was not now and never has been” a member of the Federalist Society. It was as if mere association with this group posed a threat to his confirmation. Roberts is now proudly out of the closet as a card-carrying Federalist, along with his fellow society brethren Samuel Alito, Clarence Thomas and Neil Gorsuch.

If you are counting, that makes four Federalist Society members on the nine-member court. Number five is just a Senate vote away. Brett Kavanaugh has been a Federalist activist for more than 20 years. In fact, when he worked for Bush, he was the one who persuaded his boss to nominate the then-closeted John Roberts. That is precisely how this once obscure organization works. It jams an extensive pipeline with well-groomed right-wing thinkers and sends them through a labyrinth of channels, from clerkships to partnerships to judgeships.

How did all that happen? Enter Leonard Leo, a quiet, far right ideologue and a brilliant organizer. Leo is a member of the secretive, reactionary Knights of Malta, a Catholic order founded in the 12th Century that is to the extreme right of the Vatican. According to close associates, Leo declared 20 years ago that conservatives had lost the culture wars – abortion, gay rights, contraception and diversity. He said the only solution was to “stack the courts”. He signed on with the Federalist Society as its fulltime paid operative and the stacking was quickly underway.

Roberts and Alito – and a couple of circuit appellate judges – were big wins for Leo during the George W. Bush years. But the floodgates opened wide for him when he joined forces with one of the most ideologically impure politicians in American political history. According to the New York Times, Leo repeatedly refused to meet with candidate Donald Trump in 2015 and early 2016. Eventually, however, he was persuaded to take a meeting. To Leo’s astonishment, Trump told him to come up with a list of Supreme Court candidates, and that he would publicly promise to fill the Scalia vacancy from that list. Months later, Neil Gorsuch moved from Leo’s list to the United States Supreme Court, soon to be followed by Brett Kavanaugh. Court watchers have estimated that by the end of the year, 26 percent of the federal appellate bench will have come through the Federalist Society pipeline. How amazing. How frightening. The selection of lifetime judgeships has been subcontracted to an outfit that the last Republican administration disavowed as too dark and shadowy.

Sadly, at this moment, there is nothing for liberals to do but grit our teeth and shake our heads. We have been outmaneuvered by a skilled right-wing court stacker. As the moment passes, however, we need to learn from him. We need to build our own pipeline of brilliant young lawyers willing to don judicial robes and apply the constitutional values and principles set forth by the founders to our current lives. Yes, it’s enormously sad to see the death of the judicial thinking we grew up with. But, as the late, great Joe Hill said in a different context, “Don’t mourn, organize.”

MOTHER LODE OF VULGARITY WINS FEDERAL COURT REPRIEVE

Warning: If slang words entailing a hard “ck” sound invoke trauma, hysteria or bad middle school memories, please cover your eyes. For the rest of you, here’s the good news: “motherfucker” got a thumbs-up from three federal appellate judges. The decision may not rise quite to the level of Brown v. Board of Education, but it was music to ears of disgruntled employees, particularly those who have a m’fer for a boss.

What a long, strange judicial trip it’s been for this nasty moniker, the titular pinnacle of George Carlin’s Seven Dirty Words. According to those who study these things, motherfucker made its jurisprudence debut in a 1889 Texas Court of Appeals case, Levy v. State. A witness testified that Defendant Levy was a “God damned mother-f–king bastardly son-of-a-bitch.” The legal precedent established an expletive hierarchy, allowing every word except m’fer to be spelled out. A decade later, however, the same Texas court reversed itself and filled in the blanks. The case at hand involved a murder defendant who argued justifiable homicide on the basis that his victim had called him a “mother-fucking-son-of-a-bitch.” Twenty years after that, according to a book by historian Henry Louis Gates, a young man ordered to fight in World War I, fired off a letter to the editor of a Memphis newspaper calling his draft board “low-down motherfuckers”. He was court-martialed and did 10 years of hard labor.

Thanks to the United States Court of Appeals for the Second Circuit, motherfucker has come a long way, etymologically speaking. Here’s the deal: Back in 2011, workers at a New York catering company, Pier Sixty, were trying to form a union. Shortly before the vote, one of the organizers, Hernan Perez, was berated by his boss, Bob McSweeney. On his break, Perez, smartphone in hand, punched out a Facebook vent about the encounter. Here, unedited, is what he posted: “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and entire fucking family!!!!! What a LOSER!!!!! Vote YES for the UNION!!!!!”

As you might imagine, Pier Sixty management did not shower Perez’s Facebook page with likes. Instead, it fired him. Therein began an intense six-year search for the true meaning of motherfucker by some of the best legal minds in the country. Under federal labor law, bosses are generally prohibited from disciplining workers who are acting together for the betterment of working conditions. In this case, Perez didn’t just call McSweeney a “nasty motherfucker,” he called him that in the context of a union organizing campaign. In labor law parlance, that is called “protected concerted activity.” In other words, you can’t be fired for that.

But wait, there’s more. There are limits to this protection. What if Perez had no Facebook access during that catering event and, instead of calling McSweeney a motherfucker, had, say, dumped a three-bean salad on his boss’ head? Under labor case law, an employee loses protection if the concerted activity is “opprobrious”. (In the interest of saving you a click, that means pretty darn bad.) So, exactly one century after some poor guy got 10 years of hard labor for calling his draft board a bunch of m’fers, thanks to Facebook and an angry union organizer, the legal system was posed to answer a question many of us had never pondered: Is motherfucker opprobrious?

Imagine the scene in the mahogany confines of justice: ponderous thinkers in black robes, judges accustomed to complex sentences packed with words like collateral estoppel, subrogation, tortfeasor and habeas corpus, studiously examining a vocabulary they’ve hidden from their children. They pour through the case law, decades of testimony about angry employees calling their managers everything from “stupid fucking moron” to “egotistical fucker”, from a “fucking asshole” to a “fucking crook”, without crossing the opprobrious line. But now they were faced, in a very literal sense, with the mother of them all.

Lawyers for Pier Sixty, with straight faces included in their $650-an-hour rate, argued that Perez went well beyond the common pale of vulgarity when he pulled his supervisor’s poor, innocent mother into the mix. Yes, they stipulated, their client’s managers had, indeed, discovered new conjugations of the f-word on a daily basis. They admitted the bosses said the following to their charges: “Are you guys fucking stupid?”; “a fucking little Mexican,” and a “motherfucker who should eat shit.” But, but, but, they insisted: the vile, disgusting words Perez used are “distinguishable from a passing epithet uttered in frustration”. When he said, “Fuck his mother and his entire family,” the corporate lawyers insisted, this worker was getting personal and involving his boss’ family members. And that, they said, is as opprobrious as it gets.

That argument was respectfully rejected, first by an administrative law judge, followed by the National Labor Relations Board, and then by the Second Circuit appellate panel. They concluded that Perez was not literally proposing sexual intercourse with his supervisor’s mother or other family members; he was simply dissing the guy himself. Any teenager could have explained that to the learned judges. But these kind of weighty matters need expert opinion, so they plowed through numerous academic treatises (here and here) on the use of mother-denigrating slang as a means of verbally attacking an adversary.

As a result of all this litigation. Perez won his job back. M’fer means many things to many people, but whatever it is, thanks to the Second Circuit Court of Appeals, it is not opprobrious. Let’s hope this case does not end up before the U.S. Supreme Court. Who knows what those motherfuckers would do with it?

THE VERDICT IS IN: JURIES ARE NOT CHANGE AGENTS

Two high profile trials that ended last weekend reminded us that petit juries are no venue for profound social change. In two very different deliberations, jurors did what they were supposed to do: examined the evidence and applied the law to those facts. To say that neither outcome advanced broader underlying causes would be an understatement.

Philando Castile was a black 32-year-old Minnesota school cafeteria worker. He was driving with a broken brake light last July when a suburban St. Paul police officer, Jeronimo Yanez, stopped him. Within minutes, Castile was dead. The officer, after approaching the car window, asked Castile for his license and proof of insurance, which he immediately produced. According to police records, Castile then told Yanez that he was carrying a firearm (duly registered). The officer told him not to pull it out, and then proceeded to fire seven shots at him. Yanez became the first Minnesota police officer in modern history to be charged with manslaughter. On Friday, a jury acquitted him of all charges.

Meanwhile, about 1,200 miles to the east, 12 jurors deliberated for 52 hours in Norristown, Pennsylvania over whether legendary comedian Bill Cosby drugged and sexually assaulted a woman more than a decade ago. The case was a proxy of sorts for at least 59 other women who, going back over more than half a century, claim they were similarly assaulted by Cosby. Only one case, however, was before this jury, and since the alleged incident occurred 13 years ago, strained and inconsistent memories resulted in conflicting testimony. On Saturday, jurors said they were “hopelessly deadlocked” and the judge declared a mistrial.

These two juries, sitting in separate county courthouses 1,200 miles apart, sparked viscerally adverse reactions among those who had hoped for verdicts that would send strong messages on two important issues: racism in policing, and aggressive prosecution of sexual assault.

A Star-Tribune story on the Minnesota verdict started with this sentence: “For black Minnesotans, the acquittal of Jeronimo Yanez in the fatal shooting of Philando Castile was the latest sign of a criminal justice system that often delivers heartbreak.” That angst is more than just a Minnesota thing. In 15 recent instances of black men killed by police nationwide, there were only two convictions. Still, the facts of this case seemed particularly strong. According to prosecutors, Castile did everything right. He was polite and compliant. He wasn’t running from police. There was no weapon in his hand. He just sat there, calmly and quietly, while the officer fired seven shots at him.

While the jury heard those facts, it also listened to Yanez’s tearful testimony about being confused and in fear of his life. Jurors, according to a Bowling Green State University study, are inclined to distinguish between a cop’s serious mistake and manslaughter, particularly if the officer was scared or confused. After 29 hours of deliberations, these 12 people – 10 white and 2 black – decided that the seven shots Officer Yanez fired at Philando Castile did not rise to the level of criminal activity. Jason Sole is the president of the Minneapolis NAACP. He told the New York Times the verdict was “more of the same.” “How are you going to kill this guy and still say we have a fair system? How? Man, this behavior has gotta stop, and they can’t stop so they are going to continue to kill us.”

Back in Norristown, the jury system was also taking it on the chin. Andrea Constand, a former Temple University athletic administrator, testified that Bill Cosby drugged and sexually assaulted her in 2004. Dozens of other women have come forward with stories of similar Cosby encounters, but have been time-barred from taking action. The jury’s inability to reach a unanimous verdict was seen by some of his accusers as a repudiation of sexual assault victims. For example, Lise-Lotte Lubin, who claims Cosby drugged and abused her in 1989, called the lack of a unanimous guilty verdict one more sign that rape victims are rarely believed.

As a distant observer of both trials, I too was disappointed in the outcomes. I would have gone with guilty verdicts, based on what I had read, together with my values and beliefs (also known as biases). But I wasn’t a juror. I didn’t hear the testimony or see the evidence. I didn’t take an oath to apply the law only to what I heard and saw in those courtrooms. Juries for better or worse, are the centrifuge of our justice system. As a reporter covering courts years ago, I marveled at how well this seemingly quaint and archaic process worked. On the surface, it might seem flawed to plunk 12 random citizens into uncomfortable chairs and expect them to make important decisions outside their comfort zones. Yet, a mammoth review of multiple jury studies by a Cornell University team concluded that jurors consistently take their role seriously, follow the rules, and make decisions based on the evidence and the law, as opposed to crafting their own brand of justice.

And that is precisely the point. Those Minnesota and Pennsylvania jurors were not there to solve the weighty problems of racism, police violence or sexual assault prosecutions. Their job was limited to a single case, with specific facts and legal standards. The real fix for the larger social issues lies in other venues: police leadership, city halls and state legislatures. That’s where the pressure needs to be applied. It’s already happened in the Cosby matter. Many states have eliminated time limits for filing sexual assault charges, a nod to the horde of Cosby accusers who came forward after it was too late to prosecute. With respect to police shootings, if city administrators can’t find a way to stop scared, confused cops from killing people, then it’s time to change the statutes. Make the law crystal clear: a police officer’s fear and confusion are unacceptable defenses to manslaughter.