William Blake in International Bar Assocation

Despite President Obama making all the right noises, American justice is imperilled as the full implications of Citizens United are felt in judicial elections.

Skip Kaltenheuser

President Obama’s well-received inaugural speech hit upon solid themes of equality before the law: ‘… a free market only thrives when there are rules to ensure competition and fair play.’ But the hard-fought gains toward ‘EQUAL JUSTICE UNDER LAW,’ the ideal engraved over the entrance to the Supreme Court building, is imperilled. Federal courts can do mischief – decisions by the conservative Supreme Court majority and the United States Court of Appeals for the District of Columbia Circuit build corporate insulation against class-action and private lawsuits, and whittle away at regulatory reforms. But the peril may be greatest where the legal rubber meets the road for most Americans: the state courts.

While the Supreme Court grabs the media’s spotlight, including speculation on political fallout, it handles hundreds of cases each year. Other Federal courts up the tally, but state courts still handle 95 per cent of the country’s litigation. These courts are where aggrieved consumers who’ve been defrauded by financial institutions seek protection, terribly injured workers seek more than meagre workers compensation, consumers seek some parity in conflicts with corporations like insurance companies that renege on obligations, people whose property or health is impacted by polluters seek redress and those harmed by medical or pharmaceutical negligence seek compensation. State courts are where the little guy seeking justice runs his daunting legal gauntlet against the well heeled.

But the Supreme Court, in its role as final arbiter of the Constitution, can rock the state courts. The Citizens United case, in which Justice Anthony Kennedy wrote ‘independent expenditures do not lead to, or create the appearance of, quid pro quo corruption’, welcomed limitless money, including that riding stealth vehicles. Citizens United received great attention during Presidential and congressional elections. Less noted is its role as an accelerant of alarming trends in judicial elections, both at the state supreme court level and lower courts.

According to the Center for American Progress (CAP), six states that have seen the most cash in judicial elections – Alabama, Texas, Ohio, Pennsylvania, Illinois and Michigan – have supreme courts dominated by pro-corporate judges. In 403 cases from 2000 to 2010 in which individuals sued corporations, those judges ruled for corporations 71 per cent of the time.

United front to control courts

The seamless web of influence includes interplay with state legislatures. Brendan Fischer, counsel at the Center for Media and Democracy, observes that in 2010, the first election after Citizens United, wealthy donors helped Republicans obtain new majorities in state legislatures across the country, and helped far-right governors into office. In return, they adopted much of the agenda of the American Legislative Exchange Council (ALEC), supported by many of the same donors. As laws implementing the ALEC agenda are passed, the gatekeepers against legislative excess are state courts. For example, judges have struck down voter-ID laws as violating state constitutions.

On its website, one can glimpse some ALEC goals, such as state legislatures ‘prohibiting courts from creating new claims (for lawsuits) on their own’. Another is to maintain ‘state sovereignty over environmental protection’, stopping Environmental Protection Agency (EPA) ‘overreach’ in its air and water rules.
Beyond voter laws, state courts are also players in the hyperactive arena of gerrymandering state legislative and US congressional districts. Voter demographics and priorities are changing, diminishing Republican Party attraction for voters.

Now schemes are being hatched in swing states to alter the award of state electoral votes in Presidential contests. The system already essentially disenfranchises voters in solid blue or red states, but these schemes would further thwart popular intent. Such mischief requires controlling courts as well as legislatures.

Justice for sale

William Blake, a doctoral student at the University of Texas, studies the impacts of elections on state supreme courts. He observes that as job security decreases, as in supreme court races that are partisan, justices become both more attuned to public opinion and more polarised on partisan grounds. Blake sees little to refute the findings of Chris Bonneau and Damon Cann, of the political science departments of the University of Pittsburgh and Utah State, respectively. Comparing the 2005 decisions of non-partisan supreme court justices of Nevada with the partisan supreme court justices of Michigan and Texas, Bonneau and Cann didn’t detect quid pro quo exchanges between contributions and decisions in Nevada, but did in Michigan and Texas. Contemplating the chicken or the egg, they concluded contributions drive judicial votes, not the other way around.

But Blake notes that, quid pro quo or not, ‘powerful interests are able to stack state supreme courts with judges who sincerely share their interests.’ He points to a 2001 survey of 2,400 state judges by Justice at Stake that found over a third of state supreme court justices believe campaign contributions influenced judicial decisions; and to a 2007 Justice at Stake poll of business leaders, with 79 per cent believing campaign contributions affect decisions.

A 2011 poll by this group shows 83 per cent of the public believes contributions influence decisions. It’s not hard to imagine a spiral effect from the public’s overwhelming lack of faith in a fair shake from judges. People with legitimate grievances will avoid the financial costs of a court casino.

Money continues to wash away prior spending levels. In 1990, state supreme court candidates raised around $3m total. In 2012, TV ad spending alone reached nearly $30m across 51,000 ads. Studies of state high court elections by university and reform groups, including the Brennan Center for Justice and Justice at Stake, demonstrate the increasing amounts of money coming from non-candidate groups. Forty per cent comes from a handful of national groups and political parties. Such groups fund three-quarters of attack ads. Typically, these ads wildly distort a judge’s rulings or a candidate’s background. The approximate parity of prior elections between the largest groups on the left and the right goes away as financing by business and specific interest groups dominates.

Crippling funding cuts

Increased campaign funding runs contrary to trends of reduced funding for state courts, raising filing fees, cutting staff and salaries and diverting resources from civil trials. New York and California both have huge reductions in funding. California’s Chief Justice Tani Cantil-Sakauye predicts this will be ‘devastating and crippling’ for her state’s ability to dispense justice. Dismissed part-time New York judges now work as volunteers to keep justice in motion.

None of this bodes well for the little guy fighting large companies or banks. Iowa now operates with a smaller workforce than in 1987, but handles double the number of cases. Now aggrieved litigants worry about judicial motivations of financial expediency, and curious rulings that curb prospects for a fair day in court. Add to that the prospect of judges chilled by worries of becoming targets if not thought adequately friendly to business, and their desire for contributions in future contests. Small wonder confidence in the courts is plummeting.

A Center for American Progress (CAP) report by Billy Corriher, updated to consider the 2012 state supreme court races, underscores special interest money swamping campaigns at the supreme court level. An increasing number of races log spending in the millions.

Consider 2012 re-election of North Carolina Supreme Court Justice Paul Newby. According to the CAP study, Newby benefited from more than $2.5m of independent spending. This pushes a state public financing programme that had once been a model for curbing money in judicial races towards irrelevance. As in many elections, the Koch brothers were big players through their SuperPac, Americans for Prosperity, as was the state Chamber of Commerce. In 2009, Newby ruled against tobacco farmers in a dispute with tobacco companies. North Carolina tobacco companies that benefited provided hundreds of thousands of dollars towards Newby’s re-election.

Tobacco’s largess to Newby raises serious doubts as to how well big money and the ideal of justice mix, but consider an upcoming case involving a recent redistricting map. Funnelled through an independent group created to support him, Newby received over a million dollars from the Republican State Leadership Committee, which was keenly involved in the Republican-controlled state legislature’s drafting of the map. A case claiming the map disenfranchises minority voters is before the State court. Despite North Carolina ethics rules, which say that judges should not hear cases where their ‘impartiality might reasonably be questioned’, Newby will hear the redistricting case.

Michigan’s state supreme court is also causing raised eyebrows. Two conservative justices, Stephen Markman and Brian Zahra, received $400,000 of ads paid for by the Michigan Association of Realtors after the justices joined a 2011 opinion easing the path for mortgage companies to foreclose on homeowners. The state Republican Party spent $4.5m on ads for the two, with no disclosure of the sources that contributed that money. On the Democratic side, the state party spent $5m from undisclosed sources on ads supporting three candidates.

It’s difficult to be surprised by much out of the Texas legal system, where judges actually campaign with the promise of upholding more death sentences. The politicisation of criminal law and executing defendants for votes is not a worry in Texas, it’s a done deal.

The ‘hang ‘em high’ reputation enjoyed by much of the Texas judiciary distracts from the flagrant corporate tilt of conservative Republicans who comprise the Texas Supreme Court. According to CAP, Justice Don Willett was easily re-elected, backed by large sums from energy companies and their law firms. In 2007, after oil companies failed to sway the state legislature to protect them from lawsuits by workers, Willett and his colleagues obliged by declaring contract employees such as oil-rig workers cannot sue employers for on-the-job injuries. A year later, in a lawsuit over hydraulic ‘fracking’, Willett ruled against energy company liability for policy reasons, stating common law must accommodate ‘cutting-edge technologies able to extract untold reserves from unconventional fields.’

Independent expenditures are not at all limited to local players. In 2012 Justice Josiah Coleman won a seat on Mississippi’s Supreme Court with a million in independent spending, half of it from the Law Enforcement Alliance of America, which CAP notes has been associated with the NRA and US Chamber of Commerce.

What drives such involvement? One motive is erecting judicial barriers to lawyers seeking theories to get around the Protection of Lawful Commerce in Arms Act, the National Rifle Association-backed liability shield for the gun industry passed by Congress in 2005. State supreme courts have been battlegrounds in past attempts to establish liability, such as variations on negligence. Other industries, including energy, financial and insurance, also seek to undermine their liability.

No quid pro quo endgame in sight

James Nelson, who recently retired from the Montana Supreme Court after 19 years, points to Republican Party of Minnesota vs White, which challenged Minnesota’s prohibition on candidates seeking election from discussing issues that might come before them. ‘The US Supreme Court ruled 5–4 that, though candidates couldn’t promise how they’d vote, they could announce their positions on various issues’, says Nelson. ‘Most state ethics rules then (2002) prohibited that. Now they can say what they’re for or against. That doesn’t have to be a promise for people to figure out how a judge will vote.

Nelson, originally appointed by a Republican governor who chaired George W Bush’s 2004 campaign, is horrified by where the politicisation of the courts is heading. ‘The more parties get directly involved in judicial selection, the more they put people on the bench who are loyal to the party platform – the law be damned.’ Beyond attempts to change the way judges are selected and retained by allowing more political levers, Nelson believes ‘court de-form’ efforts will be made to skew courts with qualification requirements – such as prosecutorial or district judge experience – that move in an ideological direction. Other efforts across the country include creating wacky grounds to impeach judges.

Nelson sees elections becoming so expensive that only the rich can compete – limiting the pool to wealthy business-types or those with similar backing. ‘Politicizing the courts impacts a lawyer’s willingness to be a judge,’ says Nelson. ‘Trying to follow money can be like looking at a Cayman bank account, layer upon layer. Backers don’t like disclosure. I once thought the judiciary was sacrosanct, it isn’t now. Academia won’t be sacrosanct in a few years, nothing is sacrosanct now. This is about the corrupting, corrosive, distortive influence of big money on the courts.’

Someone might mention this to Justice Kennedy.

Skip Kaltenheuser is a freelance journalist and writer, he can be contacted at skip.kaltenheuser@verizon.net

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William Blake in the Wall Street Journal

Judges as Umpires, Umpires as Judges

By Christopher Shea

Anyone following the debate over the constitutionality of the Affordable Care Act will have been freshly reminded of the inadequacy of Chief Justice John Roberts’s comparison of Justices to baseball umpires enforcing clear rules, an analogy he famously made during his confirmation hearings. (Whatever you might say about Commerce Clause jurisprudence, it isn’t characterized by black-letter law, free from the need of human interpretation.) But in a new article in PS: Political Science & Politics, William Blake, a Ph.D. candidate in government at the University of Texas at Austin,* suggests that Chief Justice Roberts  oversimplified not just the law, in his famous analogy, but also baseball. Baseball umpires, too, Blake argues, must sometimes “make law” in the absence of clear guidance.

Like the Constitution, baseball’s rule’s contain contradictions. The problems begin right away: Rule 1.01 states that “Baseball is a game between two teams of nine players each.” So what to make of the designated hitter, a tenth player? Purists who have always claimed the designated hitter is a monstrosity are not unlike devotees of the Constitution in Exile, waiting for clear-minded justices to nullify the New Deal. And they have even clearer textual evidence!

The check-swing rule is a well-known part of the game: If a batter offers at the ball, even if he tries to hold back at the last second, it’s a strike. The usual interpretation involves “breaking the plane of home plate,” but Blake points out that this is a tradition that developed over time, not a literal rule. The definition of a check swing, he observes, “is entirely extratextual.”

Set aside the moving target that is the strike zone. (“I know it when I see it,” the Mets pitcher Ron Darling once said, tellingly echoing Justice Potter Stewart on pornography.) Unusual stadiums, like domes, requires special ground rules (is it a home run if you hit a roof beam?) The managers of the two teams are supposed to agree on these rules, but if they can’t agree the umpire can set them himself.

Quick pitches are illegal if they are made with the “obvious intent to catch a batter off balance.” Guess who has to divine such intent? The infield-fly rule should only be invoked when an infielder can catch the ball with “ordinary effort.” In deciding whether this standard is met, umpires are to consider “the effort that a fielder of average skill at a position in that league or classification of leagues should exhibit on a play, with due consideration given to the condition of the field and weather conditions.” Which is not much more clear-cut than a judge trying to decide whether police conduct “shocks the conscience,” something legal umpires are called upon to do. (Ditto calling a game on account of “unsuitable” weather conditions.)

Finally, there’s a baseball rule that at least some Justices would dearly love to have in their arsenal: “Each umpire has authority to rule on any point not specifically covered in these rules.” When the 1989 World Series resumed, after a delay caused by the Bay Area Earthquake, Blake notes,  the umpires decreed that if a tremor struck while a ball was in play, altering its course, that would be considered the moral equivalent of a bad hop.

That’s a clear case of umpires making up the rules — something the Chief Justice said they never do. However, Blake writes,

This does not mean that umpires are or should be partisan. When umpires have to fill in gaps in the rules, they should do so with an eye on the good of the game, not as a way of supporting one team over another.

*As well as, his author bio notes, “a member of the Central Texas Umpire Association.”

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William Blake in Reuters

Summary Judgments for March 22

By Carlyn Kolker

I, dissent


It’s been a dramatic couple of days for dissenting at the Supreme Court. On Tuesday, Justice Ruth Bader Ginsburg read her dissent from the bench in a case about the right of state workers to sue under the Family Medical Leave Act. “The inequality Congress sought to overcome seems to me well within the national legislature’s authority to address,” said Ginsburg, who disagreed with the majority that states can’t be sued for damages under a section of the leave act, according to Reuters’ Jim Vicini. The next day it was Antonin Scalia’s turn to speak out. The majority’s position in two connected criminal cases — that defendants have a constitutional right to receive adequate instructions from counsel about plea bargain options — was “absurd,” Scalia said, according to the Associated Press. “In today’s cases, the court’s zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just, convictions. It is not wise; it is not right,” Scalia said, according to Reuters.

Reading a dissent from the bench is not new, but is a way of telling your colleagues that you really, really disagree with them. It’s also a practice that is on the rise, according to a 2010 article in the scholarly Justice System Journal, called “The Brooding Spirit of the Law”: Supreme Court Justices Reading Dissents from the Bench. The article says the average number of dissents from the bench has gone up during the leadership of Justice John Roberts, to 3.75 per term. Scalia and Ginsburg are both, in percentage terms, frequent dissent readers: Ginsburg read about 10.6 percent of her dissents from the bench – the most of any justice in percentage terms – and Scalia, 7.9 percent, according to the paper, by William Blake, a graduate student in government at the University of Texas and Hans Hacker, a political science prof at Arkansas State University.

A few other notable examples of justices reading their dissents from the bench, courtesy of Adam Liptak: In 2010 John Paul Stevens spent 20 minutes reading out his dissent in the Citizens United case. In 2007, Ginsburg read a dissent in the employment discrimination case Ledbetter v. Goodyear Tire & Rubber Co. And Scalia and Clarence Thomas read dissents in cases that gave more judicial process rights to Guantanamo Bay prisoners.

There are some big cases this term – health care comes to mind. Maybe we’ll hear more dissents in the coming months.

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William Blake Cited in the New York Times

In a Polarized Court, Getting the Last Word


Published: March 8, 2010

A few times a year, Supreme Court justices go out of their way to emphasize their unhappiness by reading a dissent from the bench out loud, supplementing the dry reason on the page with vivid tones of sarcasm, regret, anger and disdain. The practice is on the rise, and it is suggestive of an increasingly polarized court.

“Dissenting from the bench,” a new study to be published in Justice System Journal contends, is a sort of nuclear option that “may indicate that bargaining and accommodation have broken down irreparably.”

Yes, a new study. Academic scrutiny of almost every aspect of the Supreme Court is oppressively comprehensive, and now three sets of researchers have identified the empirical analysis of oral dissents as a new frontier.

Over the 36 years Warren E. Burger and William H. Rehnquist served as chief justices, there were on average three dissents read from the bench each term. In the first four years of the court under Chief Justice John G. Roberts Jr., the number rose by a quarter, to 3.75.

So far this term, there has been only one oral dissent, but it was a doozy. Justice John Paul Stevens spent 20 minutes in January rebutting the majority decision in Citizens United, the big campaign finance case.

That brings the total number of oral dissents in the Roberts court to 16, and all but three came from the court’s liberal wing. The exceptions were protests from Justices Antonin Scalia and Clarence Thomas over decisions in favor of prisoners at Guantánamo Bay.

There is, of course, an element of stagecraft to oral dissents. If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.

Consider Bowers v. Hardwick, the 1986 decision that said there was nothing in the Constitution to stop states from making it a crime for gay men to have consensual sex at home. Justice Harry A. Blackmun had written a dissent, and he was thinking about summarizing it from the bench.

That sounded good to his law clerk, Pamela S. Karlan.

“The majority’s treatment is a disgrace,” she wrote in a memorandum to the justice that became public when his papers were released “and it’s well worth making clear to everyone what the case is really about.”

Ms. Karlan, now a law professor at Stanford, also had some public relations advice for her boss about the case, which was to be announced that Friday.

“I think Friday is a bad day to have the case brought down,” she wrote. “A summer Friday and Saturday are probably the least likely time for people to take notice of what the court has done. I would press, if I were you, for Monday instead.”

The announcement was indeed pushed back, and Justice Blackmun delivered a passionate dissent. It took 17 years, but the court came around to his view when it overruled Bowers in Lawrence v. Texas.

Justice Stevens has spoken up in dissent more often than any other current justice, but that is largely a testament to his longevity. He has written about 600 dissents in his almost 35 years on the court. But he has dissented from the bench just over 20 times.

In percentage terms, Justice Ruth Bader Ginsburg holds the modern record. She has read more than 10 percent of her dissents from the bench, according to the study in Justice System Journal, by William D. Blake, a graduate student in the government department at the University of Texas, and Hans J. Hacker, a political scientist at Arkansas State University.

In 2007, Justice Ginsburg called upon Congress from the bench to reverse what she called the majority’s “parsimonious reading” of an employment discrimination law in Ledbetter v. Goodyear Tire & Rubber Co. Congress did so last year.

Scholars are split about what role ideology plays in generating oral dissents. One study by Timothy R. Johnson, Ryan C. Black and Eve M. Ringsmuth in the Minnesota Law Review last year found, as one might expect, that ideological opposites are more likely to dissent from the bench. But Mr. Blake and Mr. Hacker make the case that disappointed ideological allies are the most likely oral dissenters. It is your friends, their study suggests, who drive you crazy.

There are no comprehensive records of oral dissents, and researchers reviewed audio recordings — many available on the indispensable Oyez Web site — newspaper accounts and other resources to track them down. Jill Duffy, a research librarian at the Supreme Court, and Elizabeth Lambert, a staff lawyer with a Federal District Court in New York, seem to have assembled a complete list going back to 1969 in the winter issue of the Law Library Journal.

The list shows that the Roberts court is generating lots of notable oral dissents. Here, for instance, is what Justice Stephen G. Breyer had to say from the bench when the court announced its 2007 decision sharply limiting the role race could play in school assignments: “It is not often in the law that so few have so quickly changed so much.” Those words do not appear in his written dissent.

Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.

“In 15 terms on the bench,” he said, “I have never read a dissent from the bench, but today’s decision requires that I do so.” But Justice Thomas’s memory failed him. He had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

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William Blake Cited in the Washington Post

You can’t blame the Framers for the filibuster

By Ezra Klein

Thumbnail image for breakingthefilibuster.jpg

If Democrats really do try to reform the filibuster Jan. 5, we’re likely to hear a lot about how the Founding Fathers designed the Senate with the filibuster in mind, or how the filibuster is written into the Constitution. Sen. Judd Gregg gave a pretty comprehensive version of this argument last March. Sen. Chris Dodd gave another version of it in November.

But whatever you think of the filibuster, this argument isn’t true. The delaying tactic — which has morphed into a supermajority requirement that underpins the everyday workings of the modern Senate — is not in the Constitution. It wasn’t envisioned by the Founding Fathers. Quite the opposite, actually.

As William Blake shows, the Founders would have been horrified by the filibuster. The Constitution was, in part, a reaction to the paralysis of supermajority requirements. Its predecessor, the Articles of Confederation, required two-thirds of the states to agree before the government could declare war, coin money, enter treaties, or spend or borrow funds. That rendered the government barely able to function. James Madison, in ‘Federalist 58,’ went at the supermajority directly:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

The Constitution itself was very specific on the moments when the Senate should require more than a simple majority: impeachment of a president, expulsion of a member or overriding a veto. If the Framers had wanted a constant supermajority requirement, they would have mentioned it.

As for the old story where George Washington pedantically explains to Thomas Jefferson that the Senate is meant to do for legislation what the saucer does for coffee (“cool it”), the Senate was designed with important differences than the House: The Senate is smaller than the House, it represents states rather than people, and only a third of the body is up for reelection at any given time. Elections come every six years, and the Constitution originally charged state legislatures, rather than voters, with voting senators in and out of office. Senators themselves have to be older than members of the House, and have to have been citizens for longer. Again, the Framers were pretty specific on the differences between the House and the Senate, and the filibuster didn’t make their list. In fact, it was the House where a filibuster-like practice originally reigned before the body changed its rules.

This leads to an obvious question: If it’s not in the Constitution, and it wasn’t built into the Senate from the start, where does the filibuster come from? Well, it was an accident.

All that said, I want to be clear: If, while filming National Treasure 3, Nicholas Cage unexpectedly discovers that the Liberty Bell is encircled by a secret message in which every man, woman and child who was alive to see the Constitution ratified registered their implacable and eternal opposition to the filibuster, that’s not a good argument against the filibuster. The Framers did a remarkable job in 1788, but they were men (and only men, and only white men, and only rich white men, and so on), not gods, and they did not have the information or experience that we have today. We were right to amend the Constitution to allow the direct election of senators, and perhaps the 60-vote requirement is a positive addition to the Senate, if an accidental and recent one.

But insofar as these appeals to revolutionary authority are an important part of contemporary political discourse and routinely get misused when it comes to the rules of the Senate, it’s worth setting the record straight. The Constitution didn’t create the filibuster. The Framers didn’t intend it. The modern filibuster was created in the 1970s, when cloture was moved from two-thirds of the Senate to three-fifths and dual-tracking was implemented, and it only became ubiquitous in the last 20 years, as you can see from the graph atop this post. We may think the filibuster is good or we may think it’s bad, but either way, it’s ours.

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On Individual Mandates and Limited Government

Two federal judges have struck down a key portion of the recent health care reform – the requirement that all Americans purchase health insurance or pay a penalty.  Both judicial decisions argue that the individual mandate goes beyond the power granted to Congress to tax and regulate interstate commerce.  Neither decision is overtly originalist, although I imagine most originalists oppose the individual mandate.

This begs the question: what did the Founding Fathers think about commerce?  Those of you who took constitutional law will no doubt remember John Marshall’s famous statement that commerce is intercourse, and not just the trafficking of goods.  This broad approach to commerce makes sense, given the utter failure of the Articles of Confederation to promote commercial regulation.

Here’s a second, less well-known, insight into the Founders’ and commerce.  President John Adams signed a bill into law in 1798 requiring merchant marines to purchase health insurance.  Don’t believe me?  Read on:

CHAP. [94.] An act for the relief of sick and disabled seamen.

§ 1. Be it enacted, Sfc. That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen that shall have been employed on board such vessel since she was last entered at any port in the United States, and shall pay, to the said collector, at the rate of twenty cents per month for every seaman so employed ; which sum he is hereby authorized to retain out of the wages of such seamen.


§ 3. That it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the secretary of the treasury ; and the president of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick, or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the moneys collected in any one district, shall be expended within the same.


[ Approved, July 16, 1798.]

I can’t wait to see how Justices Scalia and Thomas deal with this bit of history when the health care law reaches the U.S. Supreme Court.  I am optimistic about the law’s chances of survival.  The Court’s recent Commerce Clause jurisprudence is much closer to John Marshall’s conception than the laissez faire attitude that dominated the Court before the New Deal.  I predict the law will get at least six votes, including the support of the chief justice (though I imagine he will go to great lengths to criticize the law as bad public policy).

So there you have it – John Adams is the only person in American history to be accused of being a monarchist and then (200 years later) a socialist.

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Umpires and judges

Spring Training is underway in Florida and Arizona!  To celebrate the return of the Boys of Summer, I have whipped up a couple of excerpts from a paper I have written about judges and baseball umpires.  I hope you enjoy it.

The nexus between the legal academy and baseball is long-established and rich. Thus, it is unsurprising that then-Judge John Roberts used a baseball analogy to describe his views of the role judges ought to play in the political system. During his confirmation hearings, Roberts stated: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to  see the umpire.” This analogy was criticized by legal scholars as faulty in that it mischaracterizes the nature of judging as formalistic. As a Little League umpire, I believe the analogy is flawed because it mischaracterizes the nature of umpiring as formalistic.

A more accurate and detailed explanation of umpiring provides a useful illustration of the differences between legal formalism and legal realism. Umpires encounter many of the same problems legal realists argue that judges face: the rules of baseball are often incomplete, indeterminate, and made of artificial constructs that are difficult to apply in the real world. Further, a purely formalistic approach to umpiring undermines the fundamental values of our national pastime, which is why umpires often stretch or even flat out ignore some parts of the rulebook for the good of the game.

Consider what a formalistic application of the rules of baseball would require of an umpire when infielders attempt to turn a double play. The rules of baseball state a fielder can only record a force out if he has possession of the ball and touches a base before the runner arrives there. But often times when the shortstop flips the ball to the second baseman, the second baseman will be near second base, without actually touching it, before throwing on to first base to complete the double play. In this situation, called the “neighborhood play,” the umpire will still call the runner out at second base.

The rulebook provides a clear definition of a force out, and usually these plays are not very difficult to adjudicate, so why does the umpire ignore the rulebook? They do so to protect the safety of the second baseman. If the second baseman were required to touch second base before throwing on to first base in this situation, he risks a collision with the runner sliding into second. In fact, runners are taught to attempt to break up a double play by colliding with middle infielders, thereby disrupting their throw to first base. Thus the second baseman will touch an area near second base that will allow them to be far enough away from the sliding runner to complete the throw to first safely.

And let us not forget the strike zone, the definition of which is perhaps the worst artificial construct in the rulebook. The confusing nature of the strike zone prompted former Mets pitcher Ron Darling once quipped in Stewart-esque fashion: “I can’t really describe what a strike is, but I know it when I see it.” Whether the object is a twelve-to-six curveball or a racy movie, judges and umpires often cannot apply rules formalistically.

Thus, the judges as umpires analogy ultimately holds some value as a method of explaining the role of courts in an American democracy, but not in the way posited by Chief Justice Roberts.

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