THE LEAST DANGEROUS BRANCH

In my blogging career I have made more than a few comparisons between the changing social, political, and economic structure in the United States since 1980 and the conditions most commonly associated with "third world" countries. I (and presumably others who make the same observations) use some creative license when saying such things. As we eliminate what made our society great we take on the characteristics of a developing country – great wealth concentrated in an ever-smaller number of hands, puppet media, mass incarceration as social control, divide-and-conquer tactics forcing the general public to fight over the scraps of the economy, etc. Nonetheless I understand that the United States is not actually a third world country. We are not a kleptocracy in sub-Saharan Africa, a Central American banana republic, or a rock-strewn post-Soviet hellhole in the Transcaucus. While our socioeconomic profile might be drifting in the direction of those countries, the U.S. has something they don't: functioning institutions of government. From the micro-level (local school districts) to the trillion-dollar institutions of the federal government, we have a government that kinda, sorta, sometimes, usually functions – even if not well – toward its intended purpose.

At least for the moment. Don't worry, Sierra Leone; we're catching up as fast as we can. A few more years of Tea Party governors and we'll be Tajikistan before you know it.

The most important institution of government that separates us from the barbarians we like to condescend is a functioning legal system. This is what We have and They do not. Despite the founders' characterization of the judiciary as the "least dangerous" branch, having neither "the sword nor the purse", it also happens to be the most important. Failed and quasi-developed states have sham judiciaries that make decisions based on fiat. We do not. Don't get me wrong, our legal system still produces injustice by the wagon load and the bulk of our criminal laws are nonsensical. But our most important courts, the courts of appeal, make decisions based on written law. Justices have different interpretations of what that written law means in a given context, but they are making decisions based on A) previous decisions and B) a constitution and statutes. When that breaks down, and a legal system makes decisions based solely on partisan politics, then the government surrenders the pretense of being a representative one and becomes a dictatorship. Perhaps not a brutal one, and maybe even one that represents some portion of the popular will, but a dictatorship nonetheless.

Take three recent Supreme Court decisions that I personally consider terrible: Bush v. Gore, DC v. Heller, and Citizens United. In each case the majority made a decision based on its interpretation – an interpretation I believe is incorrect – of some aspect of our Constitution: equal protection, the 2nd Amendment, and the 1st Amendment, respectively. The decisions are controversial because reasonable adults can disagree on the interpretation. When does a state's discretion over the conduct of its own elections cross a line and violate its citizens' rights? Is the right to bear arms an individual right? What exactly is the limit of the 1st Amendment right to spend money as political speech? These are valid questions, and I am prepared to make a persuasive argument for my opinion on the correct answers. But people can disagree. The point is, the Court decided these cases based on the balance of competing viewpoints among its members. They didn't just make shit up.

The Wisconsin Supreme Court can no longer make that claim. They've moved on to Straight Making Shit Up in place of reasoned disagreements about the minutiae of the law. That's what Chief Justice Shirley Abrahamson alleges in her dissent (The decision is available in its entirety here, with the dissent beginning on p. 31 of the Scribd document). This is not business as usual for any court to call out its own members. As Forbes notes:

It revealed, by way of written opinion, a now 'out in the open' battle between the members of the court wherein the minority opinion bluntly and directly accused the majority of fudging the facts to reach the decision they had already determined they wanted to reach. The minority opinion further alleged that the majority was driven by political motives rather than the desire to deliver a fair and judicious opinion.

In the world of the law, this is beyond huge. This is gargantuan…(t)he notion that a minority opinion would level a charge of judicial cheating against brother and sister members of the court, in an opinion that will now become part of the Wisconsin judicial body of legal authority, is positively remarkable. I’ve read more cases in my life than I could possibly count and never-and I mean never- has anything I’ve seen so much as approached what I read in this case.

Rather than rambling on about the failings of the majority argument (a noun for which it barely qualifies) I encourage you to take the time to read her dissent along with the half-assed majority concurrence from Justice Prosser. Like so much of our political discourse and rhetoric these days, the majority simply begins with the conclusion, cherry picks some facts to support it, completely ignores all of the evidence that contradicts it, and gives the rubber stamp to the ruling cabal's latest ignore-the-law-to-save-it tactics in the other branches of government. With a little creativity and a blind spot the size of Cowboys Stadium, you too can reach the conclusion that while the state legislature may have passed an open meetings act it is not subject to the act's requirements. And that part of the state constitution about all sessions of the legislature being open – well, those just don't apply here. Oh, it's also an original jurisdiction case, which I suppose is why the majority spends so much time rehashing the facts of the appellate court decision that preceded its own decision.

Our legal system allows – requires, even – competing interpretations of facts and the written law. If we're just making up our own facts and shedding even the pretense of making some kind of coherent argument based on the relevant precedent and constitution, then we don't really have a judiciary. And if we don't have a judiciary, a venue to enforce predictability and to provide a means to resolve disputes without recourse to violence, then we don't really have a functioning government. At least not the kind with representative institutions, anyway. With each passing day it becomes more obvious that large segments of the American public, professed adoration of "freedom" and "justice" notwithstanding, are A-OK with that.

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34 Responses to “THE LEAST DANGEROUS BRANCH”

  1. Middle Seaman Says:

    While I totally agree on the Wisconsin "supreme court" decision, I do, basically disagree on most of the rest of the post. Citizen United is a much an invention of facts as is the Wisconsin decision.

    What differentiate us from bona fide 3rd world country is quantitative rather than qualitative. The Wisconsin events have been totally ignored by the media. That is downright the old Soviet Union press. The right wing of the supreme court is predictably supporting companies over people, government over people, the ridiculous interpretation of the 2nd amendment, etc.

    Individuals are getting poorer while the rich and powerful get much richer. Elections are stolen, our two political systems get closer to each other and further away from the people. They are both controlled by the rich.

  2. butler Says:

    Your professed animosity to my age group notwithstanding, THANK YOU. This is the only place I've read anything noting that the WI State Supreme Court just Decided that the the WI State Legislature need not obey it's own rules when not doing so aligns w/ rightward policy goals.

  3. Xynzee Says:

    As always: IOIYAR

  4. Grumpygradstudent Says:

    Just sent this to my friend who is a clerk for one of the conservative justices on that court.

  5. gnarlytrombone Says:

    Oh, it's also an original jurisdiction case

    Yeah. About that.

    @Grumpygradstudent Just sent this to my friend who is a clerk for one of the conservative justices on that court.

    Please also ask how the local AM radio wingnuts knew this was coming down.

  6. John Says:

    Court rules that the government need not obey its own laws when operating in pursuit of right-wing goals? Color me shocked. It's Okay If You're A Republican.

    It was hilarious yesterday listening to Hannity trying to justify supporting Newt "Cheat on my wife and leave her while she has cancer" Gingrich while demanding the resignation of Weiner. He tried to bullshit that Weiner had to resign because, like, it's about lack of impulse control man! And then when the caller pointed out that Gingrich cheating on his wife was the exact same matter of impulse control, his only response was "Well, you could be right, or… you *could* be looking at a marriage that was already over."

    I mean, seriously? Do they even fucking TRY to make this look legit anymore?

  7. c u n d gulag Says:

    Yup.
    And, as cases like this and other move up to a Federal level, the judges put in place there by Reagan, Bush "Not the Stupid and Completely Sociopathic One," and "Little Boots" Bush "Bingo – THE Stupid AND Sociopathic One," will decide WITH "extreme" prejudice which decisions to support, and which to kill.

    Also, the Dominionist "Sixth Column" of graduates from Liberty, Trinity, and Ave Maria Law Schools, are spread out throuthout our legal system, from a county to a nationwide level, as everything from clerks to judges.

    We may soon find ourselves as a Dominionist Fascist state.
    Somewhat like Spain under Franco, but with more religion, and not quite as well off.
    Also, their food and wine is better – I'll take tapas over Mickey D's, and Rioja over Ripple any day.

    The United States of America.
    1776-20??
    Born in Revolution.
    Done in by the Reagan Devolution.
    R.I.P.

  8. Edward Says:

    Another discouraging development for the "reality-based community". This is somewhat off topic, but I copied below a link to an interesting video about the prison system:

    http://www.blackagendareport.com/content/michelle-alexander-riverside-church-may-2011

  9. Hawes Says:

    I don't know about Tajikistan – because corporations will never allow for the erosion of contract law – but we are certainly headed in Russia's direction.

    I'm waiting for Mitt to promise us a "dictatorship of law".

    Or maybe Brooks.

  10. anotherbozo Says:

    Ed, I rejoice that there is an articulate, sane voice here to give me a blow-by-blow account of our decline and fall. Butler sez it for me: THANK YOU.

    I also notice that I come here to get a discussion of NEWS that isn't spelled out nearly so well anywhere else. Godhelpusall.

    And as usual, many commenters here are more to the point/wittier/more incisive than most other bloggers, professional and otherwise. Huzzahs to all.

  11. acer Says:

    @c u n d:
    Ripple was taken off the market a few years ago. We are truly an empire in bad decline.

  12. Monkey Business Says:

    Someday, our children will ask us if we knew when we were totally fucked, and if so why we didn't do something about it.

    I'll tell little Monkey Business Junior that it wasn't so much we woke up one day and went "Well, we're well and truly fucked." It was more a succession of months and years in which we were waiting for the other shoe to drop, something akin to outright revolution in the streets, armed mobs, the works, without realizing that not only had the other shoe had already dropped, but was continuing to drop, repeatedly, on all of us.

  13. Jordan Says:

    This really isn't that unique in the world of court decisions, cases where the dissent basically accuses the majority of making up facts. Infrequent, not rare.

    You apparently have found the worst legal commentator ever. I'm a law student, meaning they tend to cherry pick cases where things are mostly settled to read to us. And even I can come up with a bunch of cases off the top of my head where precisely the same thing happens. Really, it's not common, but it happens enough to make it a realistic fact of the law.

    Take two recent SC cases:

    "Today

  14. Jordan Says:

    And since my comment got cut off…. the Scalia dissent in Michigan v Bryant, 2011 (where he accuses them of making up the facts), and Alito dissent in Christian Legal Society v Martinez, 2010 (where he accuses them of making up the facts and cherrypicking only the law they want).

  15. gnarlytrombone Says:

    @Jordan This really isn't that unique in the world of court decisions, cases where the dissent basically accuses the majority of making up facts

    Oy vey. The majority in this case magically took up this case from a petition for supervisory writ. It had to make up the facts, because it didn't have the trial record. Justice Ambrahamson:

    Where do all of these facts come from? Not from the certification proceedings (which the order denies) or from the petition for supervisory writ (which the court transforms into an original action). Not from the decision or final judgment of the Dane County Circuit Court. Indeed, some of the "findings of fact" are in direct contravention of the facts found by the circuit court. By casting this as an original action, the four justices are able to skirt facts that may impede the rush to their ultimate destination.

  16. xpara Says:

    Bush v. Gore set the standard of making up a legal theory to get a result. I will always suspect that our current chief justice, "Honest John" Roberts, while working on the Bush legal team in Florida in 2000, ex parted Rehnquist, for whom he had clerked, to work out some more or less plausible result, which in due course resulted in his elevation to chief justice himself. Scalia was allowed to twist the knife with his snarky citing of equal protection. Electing Bush was almost as disastrous as the Dred Scott decision, with the major difference being that Taney's opinion was Constitutionally supported, even if the dicta was odious.

  17. Jordan Says:

    @Gnarlytrombone

    Michigan v Bryant, Scalia dissent, one of those cases I mentioned:

    Today’s tale—[facts majority gives]—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles.

  18. John Donner Says:

    > We are not a… rock-strewn post-Soviet hellhole in the Transcaucus.

    Clearly, someone hasn't recently visited Detroit…

  19. gnarlytrombone Says:

    @Jordan But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief

    On what facts? There was no appellate process in this case.

  20. drinking jim crow Says:

    @Jordan

    Your point is well-made, but I do think there is a distinction to be made between rhetorical attacks from a dissenter on the validity of the facts and/or legal reasoning relied on a majority opinion writer (as exemplified in that Scalia snippet you shared from Michigan v Bryant) and the specific, point-by-point evisceration of both the majority's factual and legal rationale. That is pretty rare.

  21. Chicagojon Says:

    The problem with the linked Forbes post is that while it is correct in its assessment of the Wisconsin case and correct that it reaches new levels of judges dismissing each other openly during written opinions it ignores that this has been on the rise and most clearly in the SCOTUS. To wit:

    “It is not often in the law that so few have so quickly changed so much,”
    These words were spoken by Justice Stephen G. Breyer with respect to his dissenting opinion of Parents Involved in Community Schools v. Seattle School District No. 1. He concluded his dissent with the sentence:

    “This is a decision that the court and the nation will come to regret”

    That seems to me to be awfully strong language in a written dissent. My point here is not to disagree that WI is fucked up and that the judiciaries descent into partisan bullshit isn't the true death of freedom, it's that it already started with Scalia/Thomas' ascent made possible by the nomination of Alito and Roberts. Of course that all started with Reagan's vision so I agree with c u n d gulag. This shit was dead 30 years ago — it just wasn't published because the people writing the stories and taking control were the ones making money.

    In the Justice's 77-page written opinion he called the ruling a "radical" step away from established law that would take from communities a critical tool used for many years in the prevention of resegregation.

  22. Brandon Says:

    Can someone explain to me the facts that the wingnuts made up?

  23. mothra Says:

    Jordan:
    You're a law student. You have some years ahead of you. Yes, there are snarky dissents–Scalia is the king of snarky dissents. But I venture to say that I haven't ever seen a smackdown such as that handed out by Justice Abrahmson in my experience. (Been a paralegal for 19 years). Generally the justices don't go around calling their fellow justices partisan pawns.

    Isn't Abrahmson the justice who Judge Prosser called a "bitch?" Apparently there is no love lost…

  24. c u n d gulag Says:

    @ acer says,
    THEY TOOK RIPPLE OFF THE MARKET?

    VIVA LA REVOLUTION!!!

    Wait, hold the Revolution.

    They at least left us something – we still have Mad Dog 20/20.
    We'll know the "Reign of Terror" will have begun when they take that off the market.

    Viva la MD 20/20!!!

  25. gnarlytrombone Says:

    Can someone explain to me the facts that the wingnuts made up?

    All of them. The majority does not rely on testimony or evidence from trial, and conducted no fact finding on its own. We can only guess how Justice Prosser built his narrative about what happened before and during the joint conference committee meeting. News reports? Chats with legislators? A dream? Who knows?

    The crucial fact the majority makes up is that "access [to the committee meeting] was not denied,” and that therefore there was no constitutional violation. That's completed belied by the trial testimony.

  26. gnarlytrombone Says:

    completely Sheesh.

  27. Mpeterson Says:

    Um, yep. Thanks for putting it so clearly.

  28. Charlie Says:

    Ed, I wrote my Law Review Note on DC v. Heller. My aim was to demonish the use of false history by Justice Scalia's opinion. My background is in history and I can tell you that judicial misuse of history is almost as common as judges ignoring of inconvenient facts. Any attentive law student can tell you that they have had at least one major case, especially in Constitutional Law, that drove them up one wall and down the other because the Court simply ignored or completely misrepresented the actual facts of the case to get to their desired outcome. Today's post makes a number of wonderful points, but this sort of intellectual dishonesty is something common and long-standing to the judiciary, at least on controversial issues. The sort of internal consistency that is required by academia and enforced through peer review is simply absent when it comes to the Supreme Court.

  29. Da Moose Says:

    I've shared drinks on a couple of occasions with the guy who argued the Heller case. His wife and mine are friends. I knew him before that case. He used to hit on my wife in front of me…. classy guy, former Israeli. He's now arguing a case in MD for the right of a brewery to use potentially offensive language on its beer label. We no longer hang out with them for a variety of reasons that include the gun case as well as the fact that he's one of those wonderful freaks of nature, a fascist jew.

    The WI aquifers are clearly tainted with metal or something. I can find no other explanation for some of the recent wacky stuff coming out of that state. I intend to take water samples when I head to Mill-town in July for a bachelor party. I'll let you know the results.

  30. DS Says:

    Doesn't arguing that you have a sound judiciary infer the actual existence of said judiciary? If I am not mistaken, the Senate Republicans are now filibustering over 100 – yes 100 – federal judge positions. How can the US legal system even be functioning at this point? Is there really nothing that the Democrats can do to push them through? That is beyond pathetic.

  31. Caleb Says:

    Did anyone actually read the opinions? The facts (misconstrued as they might have been) were not the deciding issue of the case. The issue was whether the legislature could delegate the enforcement of its own procedural rules to the judiciary. The answer was: "outside of constitutional review, no." The reason was the maintenance of the separation of powers. That seems well-decided to me. Even if the procedure the court used was unorthodox, to say the least, it wasn't outside the court's authority. I don't think this decision is the travesty of jurisprudence the author is saying it is.

  32. gnarlytrombone Says:

    The facts (misconstrued as they might have been) were not the deciding issue of the case.

    The court uses it's "facts" (invented, not misconstrued) to dismiss the constitutional violation identified by the circuit court that was the basis of its intervention.

    Among the facts discovered at trial – and ignored by the supreme court – was that less than two hours' notice of the meeting was given, and the admission by the chief senate clerk (the parliamentarian who made the call on this meeting) that under no procedural rule is that allowed.

  33. Caleb Says:

    This was not a constitutional review. It was alleged that the procedure violated § 19.84, not the Wisconsin Constitution. Whether the courts can enforce a legislative procedure against the legislature is a question of law, not fact.

  34. James Rowen Says:

    A political analysis of the WI ruling, here:
    http://thepoliticalenvironment.blogspot.com/2011/06/supreme-failures-in-madison-and-dc.html