February 14th, 2016

Scalia’s Most Important Decision

With the passing of Justice Antonin Scalia yesterday, the country immediately went into overdrive discussing his successor.

As it happens, one of the first posts on this blog discussed the worst Supreme Court decision ever, and Scalia was a part of it.

While many folks consider Plessy v. Ferguson, Dred Scott and Korematsu as the worst, there is one that, I think, clearly supersedes them.

And that is Bush v. Gore, for the simple reason that every other SCOTUS decision could ultimately be overturned by We the People. Scalia was one of the five votes in the per curium opinion.

Laws can be changed. The constitution can be amended. But what happens when the act of democracy itself is suspended?

In that case, then power has been removed from the citizenry.

There was, at the time, only one way to deal with the Florida debacle: Every legally cast vote must be counted. But Bush v. Gore suspended the act of counting votes.

And this, therefore, must stand as part of the Scalia legacy.
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P.S. — Scalia took his place in Turkewitz family history 10 years ago when he responded to a letter my brother wrote him regarding the issue of secession. You can read it here.

June 27th, 2015

Yo Scalia! Play Nice!

Justice Antonin Scalia

It seems that my Brooklyn-born guest blogger today, Jay Breakstone, was none too pleased with the temperament of Queens-raised Antonin Scalia yesterday while dissenting in the landmark case of Obergefell v. Hodges that legalized same sex marriage in all states.

And Breakstone, an appellate wordsmith, has a few words to Justice Scalia, on minding his manners. From one city kid to another. And so, without further ado, a few comments on Nasty Nino…

———By Jay Breakstone———–

Comments about Justice Scalia’s dissent in Obergefell v. Hodges, the gay marriage decision from the Supreme Court, have been grossly unfair. As one wag once said, even Hitler was a hell of a dancer. If we look hard enough, we can overlook the worst in anybody, even Justice Scalia.

Sure, Justice Scalia may have been unhappy with the rigors of real-live legal practice at Jones, Day before moving on to academia and “public service,” but that’s okay, isn’t it? You don’t really expect Harvard magnas and editors of its law review to work for a living like the rest of us, do you?

Sure, he may be acerbic in his writing, but he’s really funny. Just before describing the majority opinion in Obergefell as the product of “hubris” amounting to a “judicial putsch,” Justice Scalia identified the actors in that putsch—his fellow justices— as follows:

“[T]his Court . . . Consists of only nine men and women, all of them successful lawyers who studied at Harvard of Yale Law School. Four the nine are natives of New York City. Eight of them grew up in east– and west-coast States. No one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

See how funny that is? Well, how about that this is being written by the first Italian-American justice?

What confuses me is that Italian-Americans only comprise only 5.6% of the American population. So under Justice Scalia’s theory, how are they entitled to two justices (Scalia and Alito) of their own?

How about if we join them with the Jews? After all, there are Italian Jews, such as Fiorello LaGuardia (descended from a great rabbi on his mother’s side.) That would give Justice Scalia another 1.4%, or 7% in total.

Still, in ScaliaMath, not a significant enough cultural/ethnic/religious group to warrant the appointment of two whole justices (fractional justices being ignored.)

Maybe Justice Scalia could he be the “short people’s justice?” After all, he is only 5’ 7” tall and is probably the shortest male on the Court. However, RBG is fully notorious at barely 5 feet tall.

If the anti-Scalia group is still less than comfortable with the absence of any Protestants on the present bench (Scalia is a Roman Catholic), then they can always be reminded that for its first 180 years, almost all the justices were Protestants – – and male at that.

No, Nino, we can’t choose our justices based on who they are, where they come from, or who they pray to. But we can surely choose them based on their courtesy to their colleagues and the ability to see beyond themselves.

We don’t think it’s particularly clever to refer to colleagues who don’t think the way you do as members of a “putsch,” knowing (and you know everything) that the term refers to the attempt by Hitler and his Nazi Party to seize control of Bavaria in 1923, especially when two of your colleagues are part of that over-represented group on the Court, the Jews. At best, its self-centered and narrow beyond excuse.

In the final analysis, perhaps you’re just not a nice person. Or maybe you’re this way only when you lose, twice (Obamacare on Thursday), in the same week. But even Evangelicals would only call that being a “sore-loser.”

Nasty, even in what one believes is a last-ditch defense of all that is good about American democracy, ill-becomes a Justice of the Supreme Court.

January 16th, 2014

Justice Scalia Rips Lawyer for Reading Notes

Justice Antonin Scalia decided to have some fun with a lawyer a couple days ago. By publicly humiliating him.

The crime that needed to punished? The lawyer, Steven Lechner, was reading his argument to the Supreme Court in Marvin Brandt Revocable Trust v. United States. It was his first appearance before SCOTUS. And Scalia didn’t like someone walking into his home to do that — to read.

This was how it played out:

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.

MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -

JUSTICE SCALIA: Counsel, you are not reading this, are you?

I feel his pain.

Lyle Denniston, writing at SCOTUSblog follows up with his personal observation after the judicial taunt:

Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment.

Two points to make here.

First, it’s completely understandable that any lawyer appearing before the Supreme Court of the United States for the first time is going to be nervous. Very nervous. As in, it’s-hard-to-sleep-for-months-before nervous. That kind of nervous.

Anyone that’s tried cases or argued appeals, of course, knows this, albeit on a reduced scale. Performing in a local play isn’t the same as your first appearance on Broadway, but it’s enough to scare the bejesus out of most of us. You are about to walk on a high wire and there is no net. We desperately want something to hold onto, a crutch to grab, if you don’t mind me mixing my metaphors of Broadway, high wires and crutches.

The problem with this is that juries and judges hate it when you read to them. There is nothing in the world like the immediacy of eye contact. From a purely tactical standpoint, you don’t want to put your head down and read because it’s less effective. That’s why Presidents use teleprompters.

On those occasions when I must read, because I need to actually quote a piece of testimony, a line from a judicial opinion, or a statute, I will likely apologize for doing so in advance, thereby both keeping the attention of the audience and accentuating (I hope) the words being read.

The solution to the problem is not to take a speech to the lectern. Which is scary. But at that point, you know your case pretty darn well. A one-page outline of points to hit during your remarks should suffice.

Can’t make it fit to one page? Then get rid of extraneous words. Two to three words is all you are likely to need to remind yourself of the concept you want to address.

But there is a second point about this incident to make, and that is the abuse from Justice Scalia. While this may be his home court and he may be perfectly comfortable up their on the bench, he knows damn well that a rookie appearance before this bench will twist any rational soul up in nerves. He embarrassed someone merely because he could, because he wanted to. In the language du jour, he bullied him just for the sake of it.

Leaving aside his jurisprudence, there is a part of me that has a soft spot for Scalia ever since he gave my brother screenwriting advice on the issue of state secession, as well as for his writing ability. But this conduct was unacceptable.

More, elsewhere:

Oyez! Oyez!: Justice Scalia Confronts Lawyer Over Reading From Notes (Turley)

An Embarrassing Supreme Court Moment (Blog of Legal Times)

June 21st, 2013

Why Arbitration is Rigged Against Consumers

The United States Supreme Court put arbitration back in the news yesterday, by deciding a case in favor of American Express and against a restaurant (American Express v. Italian Colors Restaurant). The restaurant had a $40,000 claim, but to prove it would cost about $1M. They wanted, therefore, to proceed as a class action with others similarly aggrieved by American Express policies, as that is what class actions are made for: allowing small claimants to aggregate to make justice economically viable.

Justice Scalia, writing for the majority, says boo hoo and too damn bad if the courthouse doors were slammed in their face due to a contract:

“Respondents argue that requiring them to litigate their claims individually—as they contracted to do—would contravene the policies of the antitrust laws. But the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.”

Justice Kagan, writing in dissent, calls Scalia on what he did:

Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.

And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.

I won’t get into further details, as it is covered elsewhere, such as here:

The Supreme Court Just Made It Easier for Big Business to Screw the Little Guy (Mother Jones)

Details: American Express v. Italian Colors Restaurant (SCOTUSBlog)

SCOTUS Decision in American Express v. Italian Colors (CivPro and Fed Courts Blog)

I write instead to briefly explain why pro-consumer groups hate arbitration agreements that are forced onto consumers in the fine print of countless agreements.

Corporations appear regularly in front of arbitrators, but unlike judges, litigants get to actually pick who they appear before. True, the choice of arbitrator must be done with the consent of the consumer, but the consumer is likely to appear only once and not be the frequent flyers that corporations are.

Arbitrators have, therefore, two customers in front of them; one that regularly hires them to arbitrate and the other appearing as a one-off. Who does the arbitrator want to make happy?

You might think that the arbitrator would just do what is fair, but fair is a flexible term. Arbitrators know that if a defendant-corporation deserves to be hammered in the verdict, and they do exactly that in their decisions, then the company is likely to blacklist the arbitrator from their “approved” list.

If you were corporate counsel, wouldn’t you be tracking which arbitrators have given favorable verdicts and which ones not? Wouldn’t you be selecting only the favorable ones? Wouldn’t you have an “approved” list?

And if you are an arbitrator, wouldn’t you want to be on that list with a constant flow of business?

The consumer, of course, doesn’t have the advantage of appearing often, and even with counsel, the counsel is unlikely to be have as much business in front of the arbitration company as the corporation.

There are times, of course, when a plaintiff may want to arbitrate, such as circumstances where speed is of the essence due to age, or the cost of experts exceeding the value of the case. That’s fine, so long as it’s elective.

But that isn’t what’s happening lately as corporations rush to put compulsory arbitration agreements in every consumer contract they can find.

Congress should act to reverse this decision. Given the staggering sums of money that corporations give to candidates, of course (courtesy once again of the Supreme Court in Citizens United v. Federal Election Commission), that is unlikely.

November 13th, 2012

Secession (And This Blog) Are Back in the News

Justice Antonin Scalia: "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."

Blogs can be funny things in that you never really know where they will lead, as Carolyn Elefant recently discussed when my face appeared on the sides of buses.

But now we have a real blast from February 2010: I had a very, very, very off-topic post about whether states had a right to secede from the union. (How many personal injury blogs have Secession as a blog category?)

It was as an oddball topic for this page for sure, as it dealt with something Prof. Eugene Volokh wrote on whether the issue of secession was resolved at Appomattox. In response I published a letter from Justice Antonin Scalia to my brother — that had been sitting in his drawer for a few years as a family curio — where Justice Scalia gave his very firm opinion that “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede”. The story of that letter is at the original post, and if you want the entertaining background you can get it there.

In the wake of the Obama-Romney election, however, that letter is back in the news. Yesterday Politico reported on people petitioning the government for the right to secede, because if you get 25,000 signatures you will get a response from the White House:

Using the Obama administration’s own We the People website, nearly two dozen petitions have sprung up asking the Obama administration for permission to withdraw from the Union.

The two most popular petitions, Texas and Louisiana, have both drawn more than 10,000 signatures each as of Monday morning. The Texas petition needs only 7,000 more signatures to trigger an official White House response.

That number has rapidly increased, as voters in 47 states who saw their presidential candidate come in second have been circulating petitions on the issue of secession. A quick Googling of Scalia No Right To Secede and you can see many bloggers have already hunted for original sources in the last 24 hours. And that, of course, leads back to the letter from Justice Scalia to my brother.

I’m sure I won’t be the first, or the last, to observe that a desire to secede based on the results of democracy seems a tad odd. Are the secessionists advocating dictatorship instead? Monarchy? Theocracy?

The only question I really have on all this is: When the White House says “No” to the secessionists, will they quote Justice Scalia as authority?