Posted on by rjonakait

First, Let’s Kill Not Just the Lawyers

There are over 130 lawsuits against the administration’s activities, but I want to consider three instances where there could be, but aren’t, court cases. The first happened a few months ago. Trump sued the television network ABC for libel. ABC settled the suit for millions even though knowledgeable First Amendment and media experts said that the network would have won.

Second. The Trump administration said it was stripping Columbia University of $400 million in grants but would “negotiate” about them if Columbia made various changes, including prohibiting masks at protests, adopting a definition of antisemitism, employing security guards who are authorized to make arrests, and putting a department into “academic receivership.” Columbia seemingly capitulated and agreed to the extraordinary demands of the administration, probably insuring further attacks on other universities.

Third. Trump is now also targeting law firms that, in his opinion, “engage in frivolous, unreasonable, and vexatious litigation against the United States.” He has stripped firms of security clearances and forbade their lawyers from entering government buildings, which makes it impossible to represent sundry clients. Some firms have resisted Trump’s demands, but the large and powerful Paul Weiss firm gave into them. Paul Weiss will stop diversity activities, provide $40 million of free legal services to projects that have Trump’s approval, and take on clients with a “full spectrum of political viewpoints.”

There is a common thread here. ABC, Columbia, and Paul Weiss are all private institutions. The institutions have to be concerned that they will be effectively destroyed by Trump’s actions and by additional actions Trump might take if he were defied. ABC had to be concerned that the FCC and other government agencies would make life difficult for them and their affiliates or even strip them of their licenses. Columbia gets multiples of the $400 million in federal grants and contracts, and the university had to be concerned that Trump would extend his attack on the university. Paul Weiss felt that it would lose clients and lawyers to other firms because of what Trump had done.

Trump’s retribution is frighteningly broad, and while his memory for facts may be deficient, he remembers what he perceives as slights. Years ago, for example, Trump tried to sell Columbia some Manhattan property. Eventually the university declined, apparently angering the then real estate developer. Trump wanted $400 million for the property, the amount that the federal government is now withholding from the university. Coincidence? Another example: Trump has demanded an apology from the Maine governor for some comments by her that Trump did not like. His implication is that the state of Maine will be punished if “I’m abjectly sorry” is not forthcoming. Paul Weiss was targeted not for the work it had done, but for the work of a one-time partner, Mark Pomerantz, for the Manhattan DA. That the threatened actions against the firm are only a pretext is clear. If Paul Weiss were a threat to national security and security clearances needed to be stripped to ensure our safety, nothing the firm promised to do would change that. This is not about national security; this is about retribution.

The attack on law firms, however, is not just revenge. Apparently, prestigious firms have already decided not to take on cases that challenge Trump’s policies for fear that they or their clients will become future Trump targets. Trump is trying to win or avoid court cases not through our constitutional adversary system, but by eliminating legal opponents. We are in a new and dangerous territory when the government seeks to prevent lawyers from challenging it. Trump may not be trying to kill all the lawyers, but he is trying to kill those attorneys who oppose him as well as the institutions that do.

I, like others, hope that courts will step in to stop presidential abuses, but when institutions are rightfully concerned that they are facing an existential threat, it is understandable, and to me frightening, that they conclude that they must not fight to save their lives. When they don’t mount a defense, there aren’t cases for the courts to decide. For Trump, the path is clear: If I can show an institution that I can destroy it, they will probably capitulate, and I won’t have to worry about meddlesome courts. Most of the talk about a constitutional crisis has concerned Trump’s refusing to obey court orders, but these attacks on private institutions also constitute a constitutional crisis.

We will still get legal challenges. Individuals who have been arrested, or deported, or lost their jobs have challenged and will challenge what is happening. They feel that they will in effect lose their lives unless they challenge Trump. Private institutions may have pressures to capitulate; individuals have pressures to resist. However, individuals do not have the kinds of resources of an ABC, Columbia, or big law firms to take on the government. Individuals must depend on the volunteer activities of a few lawyers or on organizations like the ACLU or similar groups to stand up to Trump. If you can, this is the time to support those who are fighting against Trump. Only then will we find out what our country actually deems legal and constitutional.

Posted on by rjonakait

Stitching a Different Supreme Court Nine

This blissful time when the Supreme Court is not rendering decisions is an opportunity to think about the Court’s structure. Proposals to enlarge the Court have been met with claims of a “coup” to destroy the judiciary and a plot to harm “our democracy.” The Supreme Court is an important American institution. It is, however, one of our least democratic ones.

The Supreme Court, of course, is not an elected body. They are appointed by a president (who was elected) and confirmed by a Senate (also an elected body), but once in office, they are not answerable to “the people.” Unlike other appointed officials, they are not subject to removal if administrations or Senate composition change. Justices may sit for thirty or more years and make decisions for decades after the officials who appointed and confirmed them have left office. Their rulings affect Americans who were not even eligible to vote for the president and the senators who appointed and confirmed them. In short, the Supreme Court is not a democratic body. Indeed, in finding enacted laws unconstitutional, it is often acting anti-democratically.

Furthermore, many do not see the Supreme Court as a neutral, thoughtful legal body, but a political one. Such a notion finds traction any time a presidential candidate pledges to appoint Justices not just for their legal acumen or wisdom but also for their perceived views.

The Supreme Court is an important institution but not a perfect one, and perhaps it can be made even better. What is clear, however, is that a change in its size and the timing of who will be on the Court will not destroy or harm democracy. And Justices with life tenure will still have independence.

The Constitution does not define the number of Supreme Court Justices. It merely says: “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.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed ever since. That number has seemed sacrosanct since FDR’s failed attempt to expand the Court in 1937.

The Court in the 1930s had found many pieces of New Deal legislation unconstitutional. As Jeff Shesol reports in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), the Supreme Court between 1933 and 1936 overturned congressional acts at ten times the historic rate, often using long neglected doctrines and breathing new life into obscure Constitutional clauses to do so. Roosevelt then sought an expansion of the Court. Although Roosevelt gave varying nonpolitical reasons for his plan (What a shock! A politician being disingenuous!), the assumption was that he wanted more Justices so that he could appoint sympathetic people, who would uphold legislation passed by Congress and signed by the president. Or as one might put it, accept democratically enacted laws.

Roosevelt’s proposal was soundly defeated after much rhetoric about his threat to our constitutional government. While FDR’s plan failed by a resounding vote, ultimately he was the winner, and the Supreme Court and conservatives the losers. Here’s why. Soon after the proposal to enlarge the Court was presented, the Court began to uphold New Deal legislation with logic inconsistent with its previous holdings. To many the Court seemed to be bending to political winds, and the perception of it as a partisan institution increased. The proposal to enlarge the Supreme Court did not put Roosevelt in a good light. However, it also put the Court in a­ bad light when its questionable constitutional interpretations of the early 1930s became recognized as the overreach of biased judges reacting to legislation they did not favor.

Any suggestion since then to expand the Court has met with outcries that our constitutional way of life will be overthrown. Adding Justices only seems to be a partisan power play and not something that could improve justice, the Court, or the perception of the Court.

Current Court decisions, however, as has been true for much of our history, are seen not as neutral constitutional and statutory rulings but as the imposition of personal, political, and increasingly religious views of the judges and those who placed them on the bench. We can’t remove politics from Supreme Court decisions. On some level, all government decisions are political, and the Court is not immune. Writing about a famous case, legal scholar Fred Rodell said, “Both the plaudits and the deference, like the decision itself, and like every significant Supreme Court decision since, were and are rooted in politics, not in law. This only the ignorant would deny and only the naïve deplore.” This may be so, but that does not mean that we should just throw up our hands and accept an overly partisan Court. Instead, in examining proposals for reforming the Supreme Court, we should be seeking ways to make it look, and perhaps be, less politically biased and more politically neutral.

Merely expanding the Court is not a particularly good solution. If Democrats added more Justices, Republicans would be urged to do something comparable when they have the opportunity. Other proposals, however, offer institutional changes in the timing of Supreme Court nominations that, even though they would lead to a larger body, could make the Court appear, and perhaps be, less partisan. I have not studied them all, but one plan has intrigued me. This is not my own plan. I read this proposal, or one much like it…somewhere. I have searched for it, but so far have not found it again. I apologize for not giving proper credit to its initiator.

Here is the idea behind the proposal: Each president gets to appoint one Supreme Court Justice every two years, starting perhaps on the July 1 after the presidential term begins. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy. For a given case, nine Justices would be picked at random from all the Supreme Court judges. Many courts already operate this way. Intermediate appellate courts, such as the federal Courts of Appeals, have panels of three judges deciding a case but have more than that number sitting on that court. From the larger panel of judges, the requisite number are selected to resolve a case. For example, the Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. The court can, therefore, take on more cases and decide them more quickly. Similarly, a Supreme Court that had more than nine judges could consider more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept for review fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the final result in a litigation. This could give more certainty, uniformity, and finality to the law.

This would also dampen lawyerly gamesmanship. Deadlines are in place to seek Supreme Court review. If they are not met, the lower court decision becomes final. So, for example, if a party has been ordered to pay $1million or to serve a twenty-year sentence, the money must be paid or the imprisonment served if the petition for Supreme Court review is not timely filed. The litigant cannot wait for a change in Court Justices hoping that they will receive a more favorable chance in front of a newly-constituted Supreme Court.

Unlike individuals, some institutions can delay Supreme Court review until the time seems propitious. For example, assume the government has lost a tax case concerning some new scheme to avoid taxes. Government attorneys may believe that if they get immediate Supreme Court review, they will lose the case before the existing Supreme Court thereby allowing a precedent to be set that allows the scheme to be used by other taxpayers indefinitely. Instead, the government may decide not to seek review in hopes that the makeup of a future Court may be more amenable to its contentions. It may be better for the government to let that individual taxpayer keep the contested moneys to avoid a bad precedent and instead seek review with some other future taxpayer when the Court makeup is different. The government can take the longer view than an individual litigant.

Other institutional groups also try to time Supreme Court review. These institutions represent a cause more than an individual client. Prime examples are the NAACP or the ACLU, but this list now includes a host of conservative organizations as well. These advocacy groups often seek judicial review only when they assess the Supreme Court lineup as favorable to their position. We can expect to see that gamesmanship being played repeatedly in the coming years. With Barrett’s ascension to the Court, conservative legal organization see a solid majority favoring certain kinds of religious claims and Second Amendment expansion, and they will now seek to get Supreme Court review of cases containing such issues.

Such gamesmanship only furthers the notion that it is not truly the Constitution or the law that determines an issue, but the personal predilections of the Justices. The intrinsic merits of a legal argument may stay the same, but the likelihood of an outcome can vary depending on the timing of Supreme Court review.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more focus on the issues and less on the judges.

There is also another option if we had a new Justice every two years, and we had a Supreme Court larger than nine. It is the one I find most interesting.

(concluded July 25)

Posted on by rjonakait

Stitching a New Nine this Time

We can’t remove politics from Supreme Court decisions. On some level, all government decisions are political, and the Court is not immune. Writing about a famous case, legal scholar Fred Rodell said, “Both the plaudits and the deference, like the decision itself, and like every significant Supreme Court decision since, were and are rooted in politics, not in law. This only the ignorant would deny and only the naïve deplore.” This may be so, but that does not mean that we should just throw up our hands and accept an overly partisan Court. Instead, in examining proposals for reforming the Supreme Court, we should be seeking ways to make it look, and perhaps be, less politically partisan and more politically neutral.

Many reforms have been proposed including adding Justices now, which, of course, will be seen as and would be a partisan move even if it is warranted by Republican actions. Expansion would apparently be a one-shot deal, but of course, Republicans would be urged to do something comparable when they have the opportunity.

Other proposals, however, offer institutional changes in the timing of Supreme Court nominations that, even though they would lead to a larger body, could make the Court appear, and perhaps be, less partisan. I have not studied them all, but one has intrigued me. But now my embarrassment. I know that I read this proposal, or one much like it, somewhere. It was online, and I did not save it. I have looked for it, but so far have not found it again. I apologize for not giving proper credit, which I hope to correct.

The core of this unique proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy. Instead, in this scenario nine Justices would be picked at random from all the Supreme Court judges to decide a case. Many courts already operate this way. Intermediate appellate courts, such as the federal Courts of Appeals, have panels of three judges deciding a case but have more than that number sitting on that court. From the panoply of judges, the requisite number are selected to resolve a case. For example, the Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. The court can, therefore, take on more cases and decide them more quickly. Similarly, a Supreme Court that had more than nine judges could consider more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept for review fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the final result in a litigation. This could give more certainty, uniformity, and finality to the law.

This would also dampen lawyerly gamesmanship. Deadlines are in place to seek Supreme Court review. If they are not met, the lower court decision becomes final. If a party has been ordered to pay $1million or to serve a twenty-year sentence, the money must be paid or the imprisonment served if the petition for Supreme Court review is not timely filed. The party cannot wait for a change in Court Justices hoping that they will receive a more favorable chance in front of a newly-constituted Supreme Court.

Unlike individuals, some institutions are able to wait for Supreme Court review until the time seems propitious. For example, assume the government has lost a tax case concerning some new scheme to avoid taxes. Government attorneys may believe that if they get Supreme Court review, they will lose the case before an existing Supreme Court thereby allowing a precedent being set that allows the scheme to be used by other taxpayers indefinitely. Instead, the government may decide not to seek review in hopes that the makeup of a future Court may be more amenable to its contentions. It may be better for the government to let that individual taxpayer keep the contested moneys to avoid a bad precedent and instead seek review with some other future taxpayer when the Court makeup is different. The government can take the longer view than an individual litigant.

Other institutional groups also try to time Supreme Court review. These institutions represent a cause more than an individual client. Prime examples are the NAACP or the ACLU, but they have been joined by a host of conservative organizations. These advocacy groups often seek review only on issues when they assess the Supreme Court lineup as favorable to their position. We can expect to see that gamesmanship being played repeatedly in the coming years. With Barrett’s ascension to the Court, conservative legal organization see a solid majority favoring certain kinds of religious claims, Second Amendment expansion, and claims limiting or perhaps eliminating the right to abortion, and they will seek to get Supreme Court review of cases containing such issues.

Such gamesmanship only furthers the notion that it is not truly the Constitution or the law that determines an issue, but the personal predilections of the Justices. The intrinsic merits of a legal argument may stay the same, but the likelihood of an outcome can vary depending on the timing of Supreme Court review.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more focus on the issues and less on the judges.

I also saw another option if we had a new Justice every two years, and we had a Supreme Court larger than nine. It is the one I find most interesting.

(Concluded April 30)

Posted on by rjonakait · 1 Comment

The Barista is Not an Essential Worker

          Covid may affect coffee customs. Apparently many people realize that they can live without Starbucks. They have learned that not-difficult task of making coffee.

I have been into Starbucks or one of its clones a few times, but not often. This is not because I don’t drink coffee. I am addicted to it, and I don’t feel right until I have copious amounts each morning. (Before some medical procedures, I have been told not to eat or drink anything after midnight. Most often abstaining from food has not been a big deal, but the lack of coffee takes a toll. As I await the knife, needle, or probe, I have been asked by attending medical personnel, “How are you feeling?” I don’t know if this is just politeness or a serious inquiry, but it is senseless. I want to snap back but try hard not to, “I am jumpy, jittery, and a bit headachy and queasy. How do you expect I feel without my two or three mugs of coffee?”) I like coffee; I desire coffee; I want coffee; I need coffee. It just doesn’t come from Starbucks.

          I presume I tasted coffee before I went to college, but I don’t remember it. However, a month or two into my freshman year (oops: Old style and politically incorrect—first year), I was drinking coffee. Then it was not so much a morning drink but was instead ingested while studying in the late afternoons or early evening to stave off the drowsies. Perhaps I got coffee at the student union or some other place on campus, but as I often studied in my room, I soon bought a percolator, the way to make coffee in those distant days.  I don’t remember what coffee I bought or where I bought it, but I do know that when the liquid in the pot got cold, I plugged the machine back in. Now the sensible thing would have been to clean out the basket that held the grounds before the reheating, but I did not do that until the pot was empty. The coffee got repercolated often more than once. The coffee became more sludge-like each time this happened which could be several times in a day. I assume that I started out drinking this concoction with sugar and milk, but if so, I quickly gave them up as unnecessarily difficult to keep in the room. Unsweetened black it was then and still is.

          If I could drink the resultant tar, my taste buds for coffee could not have been very refined, but at some point, I realized that some cups of coffee tasted better than others. As with other of my preoccupations, I became obsessed with coffee after I moved to New York City. This was fueled with an overheard conversation at the unlikely place of the offices of the American Civil Liberties Union. I was doing work there, and while it was the summer of the Pentagon Papers, not all of the talk was about civil liberties. Strong opinions were common on many topics so it was not completely surprising that two very bright attorneys were stridently discussing the merits of making coffee by percolating or by dripping. A shocking conversation to these ears. There were other ways to make coffee besides percolation? Although I had nothing to add to the conversation, I listened intently, and like the good lawyer and civil libertarian I wanted to be, I weighed the arguments and evidence. I concluded that the drip man had the better of it.

          Ezra Pound clinched the move to drip coffee. I then had a fascination with the poet, editor, and traitor and read much about him. For one of the many books I have not written, I had thought about exploring whether his broadcasts from Italy during World War II, for which he was prosecuted, should have been protected by the First Amendment. I registered information about his career and opinions, but a personal detail struck me: Pound started each day be dripping boiling water over coffee grounds held by a cloth suspended above a coffee cup. I thought it made perfect sense to have a morning ritual making coffee. It would suit me better than prayers. (My fascination with Pound had an important limitation. I did not study and try to make sense of his Cantos. I am not crazy and have stayed out of St. Elizabeth’s.)

          I adapted Pound. First thing each morning while water was heating, I put a scoop of coffee in a one cup filter inside a holder and placed it over a coffee mug. When the water boiled, the gas was turned off and a tablespoon of water was sprinkled over the coffee. It was important, I have been reliably told, to let the coffee “bloom” to bring out all subtleties and aromas. Then a mug’s worth of hot water went into the filter and in a few moments, I had my beverage. A second or third cup would be prepared in the same way. Every sip, from first to last, was hot, fresh coffee.

          Although this was the right way to make coffee, I quickly learned that the kind of coffee mattered. In those distant days, the national commercial brands were the only coffee choices in grocery stores, but I found that a few specialty stores sold something different—whole beans from all over the world. The first place I started buying non-grocery coffee was a few blocks away from my office across from City Hall in the neighborhood then nameless but now called Tribeca. The area was not then a luxury residential neighborhood but a place for small industries. One of those concerns roasted coffee beans; I am not sure of its name, but Simpson’s comes to mind. The business must have been selling in bulk to restaurants and other commercial establishments, but it would sell a pound or two of freshly roasted coffee to anyone who was willing to trek up to the fourth floor of the loft building. I did and found a few desks hidden among piles of burlap bags of coffee beans with the incredible smell of roasting coffee permeating everything. It was then I started purchasing freshly roasted beans.

The coffee was good, but as I remember there were only a few kinds. Then I learned that there were specialty stores and roasters in lower Manhattan and Brooklyn– McNulty’s, Schapira’s, Porto Rico, and Damico’s—with multitudes of coffees. There were roasts of different darknesses that made the resulting brews taste different. I learned that coffee came in an array of beans and that arabica produced a different taste from peaberry. Coffee came from Africa, South America, Central America, Indonesia, the West Indies, Hawaii, and they all tasted different. Coffee grown at high altitude would taste different from something planted at sea level. And I learned that such beans could be mixed into an almost infinite number of differently tasting blends. I learned that some coffees were rarer than others and their prices could vary sharply.

I found that making good coffee was within my capabilities. I found that coffee tastes had many possibilities. And when I made it, compared to many other sensations, it cost me comparatively little. New coffee equipment became available. Eventually, even though I still think it is the best way to make coffee, I gave up the one-cup-at-a-time method and bought a drip coffeemaker for home, for travel, and for the office. I never amortized the cost, but two or three daily mugs (a cup and saucer never suited me) cost me less than a dollar a day, and maybe only quarter of that.

(concluded July 17)