STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 2

Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.

Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.

Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."

But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.

Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.

Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?

You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).

In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.

But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).

What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.

I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.

Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.

Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.

Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.

It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).

Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.

If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.

Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.

See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.

But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.

And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.

He really must not have liked Austin.

Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.

CITIZENS UNITED v. FEC : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 1

Perhaps against my better judgment, I passed several hours this weekend working through the Supreme Court's recent campaign spending case: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). In brief, the case invalidates a Congressional Act that restricts corporations from making "independent expenditures" or issuing "electioneering communications" that expressly "advocate the election or defeat of a particular Federal candidate" within 30 days of a Federal election. 2 U.S.C. §§ 441(b), 434(f)(3)(A). The Court said that the Act violated "all corporations' right to political speech" under the First Amendment. In the process, the Court overruled a 20-year old precedent that upheld the same law on the State level: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

I reacted with surprise when I learned what the Court had done. After all, it made perfect sense to me why Congress would want to restrict corporations' ability to spend money advocating particular Federal candidates: To prevent massive, wealthy businesses from deluging the public with their views, foreclosing fair debate in an election. Money buys influence. Even if corporations do not use money to literally "buy off" a candidate, they can easily use it to buy up all the airtime and essentially tilt the playing field to favor candidates they like--namely, guys who support corporations and their agendas.

In 1990, the Supreme Court said as much. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court--speaking through a 6-3 majority--concluded that restrictions on corporate "independent expenditures" during elections did not violate the First Amendment. True, such restrictions impacted corporations' "freedom to speak." But the Court found the State's interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" justified restrictions on corporate political speech. Id. at 660. The Court further reasoned that a State could restrict corporate spending on elections in order to curb "corruption or the appearance of corruption." Id. at 659.

In other words, the Court recognized in 1990 that corporations hold disproportionate political influence in America because they have so much more money than individual voters. That was true 20 years ago. It is even more true today. Corporations are getting bigger and bigger. Traditional competitors merge with each other. Their treasuries grow. And they can use that money to dominate the airwaves before elections in ways that individuals cannot.

But now the Court overrules Austin. Writing for the new conservative majority, Justice Anthony Kennedy called Austin "poorly reasoned," even though six justices voted for it just 20 years ago. So I guess that means a case is "poorly reasoned" when it tells the truth about corporations. It is no accident that Kennedy did not vote for Austin back in 1990. Today he gets his revenge, thanks in large part to right-wing help from Bush appointees Clarence Thomas, John G. Roberts and Samuel A. Alito. Those guys weren't around in 1990. Now they're calling the constitutional shots: They think Austin was "poorly reasoned," so they overruled it.

Why did they think Austin was "poorly reasoned?" After all, doesn't it seem obvious that Congress should take steps to prevent massive corporations from dominating news cycles at election time? I think so. But I'm not on the Supreme Court.

Much to my amazement, the conservatives actually phrase the debate in "liberty" terms. They think that corporations are exactly the same as private individuals when it comes to First Amendment rights. Applying that legal fiction, they think that corporations--like individual guys on soapboxes--have the right to unlimited free speech. And they are outraged that "poor little corporations" might face criminal prosecution under the law if they spend money supporting a Federal candidate before an election.

To be clear, the Federal law in this case does not bar corporations from spending money on elections. It merely requires them to set up separate entities for political purposes--so-called "Political Action Committees" (PACs). If a corporation wants to spend money advocating for a candidate, it has to spend through the PAC, and the PAC must report its funding sources. This allows the public to see who is paying for the corporate messages. PACs must also keep a treasurer and records. Yes, corporations have to endure some bureaucracy before exercising their First Amendment rights under the law. But it is not as if they cannot speak: They must merely follow a few more administrative steps than private individuals.

Yet the conservatives scream bloody murder about these administrative steps. How unjust and unfair, they say, that corporations must form new entities and pay some paperwork expenses in order to influence Federal elections! Justice Kennedy paints a doomsday scenario in which he claims that "poor little corporations" cannot afford to comply with these "administrative steps" prior to speaking on an election. He says nothing about the mammoth corporations that have the time and resources to comply with the law. No, it's all about the "little corporations--" the poor, wronged little corporations and small family businesses.

In truth, it is extremely easy for small businesses to circumvent the law here. Assuming that small businesses even have the capital needed to advertise for major Federal elections, they could avoid problems with the law merely by creating a PAC or by speaking as individuals. The law only applies to corporations, so a "little" corporation could sidestep it by refraining from speaking as a corporation. If a "little" corporation only has two members, they could speak as individuals "with connections to small business." They do not need a PAC. They still have their individual First Amendment rights. When the law involves fictions like "corporate people," it is easy to be imaginative in thwarting those fictions.

In this light, it is foolish for the conservatives to crusade for the "poor, wronged little corporations." By standing up for the "little corporations" in Citizens United, they actually abolished restrictions on the big corporations--and they were the ones who caused the problem in the first place. They threw the baby out with the bathwater. But that was probably what they intended all along.

And what glib reasoning the Court used to reach its corporate-friendly conclusions. While I might find it obvious that "immense aggregations of corporate wealth" have a "corrosive and distorting influence" on Federal elections, the Court resolved that quandary easily enough. On this point, Justice Kennedy merely says: "We conclude that independent expenditures made by corporations do not give rise to corruption or the appearance of corruption." Citizens United, 558 U.S. __ (2010)(slip. op. at p. 42).

Oh, all right. I'll just take your word for it. When I see a corporation funneling $140 million to advocate a Republican candidate for Senate, I won't assume any corruption. Corporations, after all, are selfless and would never do anything underhanded.

Let us even imagine that corruption--or the appearance of corruption--does not flow from corporate expenditures on behalf of a candidate. Even then, the fact that a corporation spends massive amounts to elect a corporate-friendly candidate creates popular perception that the corporation "bought" the candidate.

But Justice Kennedy resolves this issue easily enough: "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." Citizens United, 558 U.S. __(2010)(slip op. at 44).

Of course not, Justice Kennedy. How could I lose faith in our democracy when major corporations outspend their ideological opponents by millions to get pro-business Senators, Representatives and Presidents elected? How could I lose faith in our democracy when major corporations buy up all the airtime to get their guys in office? After all, I have to respect corporations' First Amendment rights, too, don't I?

According to Justice Kennedy, indeed I do--even if respecting a corporation's First Amendment rights makes it almost impossible to effectively exercise my own.

At this point, we begin to see the real problem with the conservatives' philosophy about corporate free speech rights. After all, when a powerful person--or a powerful group--exercises his free speech rights, he makes it more difficult for less powerful individuals to voice theirs. It is elementary that money translates into political influence. People with more money can speak more loudly on issues than those with less. By definition, corporations have far more money than even powerful private individuals.

Under this reasoning, it is easy to see how corporations can drown out debate simply by exercising their First Amendment rights. They can overwhelm private opposition by spending massive sums on ubiquitous advertising. That is the "corrosive and distorting influence" that the Court described in Austin. And corporate power to exert "corrosive and distorting influence" is the reason why Congress imposed limitations on the their ability to exercise their speech rights in the first place. Put simply, when corporations exercise their speech rights, they make it progressively more difficult for individuals to exercise theirs.

That is the real meaning of the conservative "corporate liberty" argument: By freeing corporations to speak, everyone else has to shut up and listen to them. In my view, that is not what the First Amendment is about. The First Amendment is about individual rights, not corporate rights. If corporate free speech rights make it difficult for individual free speech rights to survive, I have little problem regulating corporate free speech rights.

But Justice Kennedy does not acknowledge any of this. He does not see the obvious--and disturbing--practical implications behind his reasoning. Rather, he seems to dwell in some ethereal place in which corporate liberty is the same as individual liberty. As such, he sees the corporation as the victim. He even ascribes wisdom to corporations, as if corporate speech could actually enlighten the population: "Corporations do not have monolithic views. On certain topics, they may possess valuable expertise, leaving them best equipped to point out errors and fallacies in speech of all sorts, including the speech of candidates and elected officials." Citizens United, 558 U.S. __(2010)(slip. op. at 48-49).

Contrary to this rhetoric, corporations do have monolithic views on many issues. When it comes to profitability and shareholder enrichment, all corporations are the same: They want to make as much money as possible. That is a "monolithic view." In that sense, corporations will always say the same thing: Namely, whatever will benefit the corporation in the circumstances. In political speech, that means a corporation will always say things to support candidates who will make them richer. Given that, it is ridiculous to think that corporations will somehow "enlighten the public" with their "diverse viewpoints" on life. Corporate political speech is all the same: It is calculated to get people elected who will make them richer. End of story, Justice Kennedy.

In sum, this case disgusts me. I have other objections about it that I will raise in a later post. But for now, it is enough for me to say that the conservatives' view about "corporate liberty" eviscerates the First Amendment's focus on individual expression. Congress understood that corporations had to cede some expressive liberty in order to protect everyone else's relative ability to engage in political speech. Now that the Court has abolished those restrictions, it has opened the door to even greater corporate control over government.

Corporate control over government was already bad before this case. Now it will get even worse. As I suggested in a satire a while back, we might as well just rename the country the "United States of America, Inc." because that's exactly where we're headed. Or maybe we're already there.

OUR SHAMELESS, DISGUSTING SUPREME COURT

OESTERHOUDT STRIKES

Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.

That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.

In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.

But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.

That is not inspiring. It is just disgusting.

It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.

First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.

But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).

Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.

Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.

Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).

This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.

That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.

Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.

Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."

But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.

Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.

Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.

On the other hand, I might get a few guffaws along the way--and more ideas for satire.

I can't write the shit Supreme Court justices come up with.

TERROR TRIALS IN NEW YORK : DO WE REALLY CARE ABOUT FAIRNESS?

AN ESSAY

On Friday, the U.S. Department of Justice announced that it would try several key al-Qaeda suspects for their alleged role in the 9/11 attacks. That was big news; under President Bush's direction, the Justice Department deferred exclusively to the military for handling so-called "enemy combatants" captured in the "War on Terror." Unlike President Bush, Obama decided to heed the United States Constitution and prosecute these suspects before U.S. civilian courts. After all, these detainees are not "soldiers captured in War" under the Geneva Convention, because al-Qaeda did not sign the treaty. Yet American authorities hold them on American territory for breaking American laws. In such circumstances, there is only one lawful alternative: Try them in domestic courts.

This was a significant step. But the Justice Department announced something even more significant: It would try the suspects in New York.

From a legal perspective, it makes little difference where the sovereign chooses to try a criminal defendant for violating the law. Here, the United States seeks to convict terrorists for plotting to attack the World Trade Center and ultimately destroy it. As long as the sovereign holds the defendant in his realm, he can prosecute him under the ancient principle of "personal jurisdiction over the body." If you are present in a country and you commit a crime there, you can be prosecuted for it in that country--it is very simple.

It also makes sense to try 9/11 conspirators in New York from a practical perspective. In criminal trials, venue is proper when it is easy for witnesses to get to the courthouse. Certain districts have a greater interest in trying a case than others, especially when all the "sources of proof" lie in those districts. Venue is also proper when the crime has a direct connection to the locale. Even the United States Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. Amd. VI. This makes common sense as well as constitutional sense. It is practical--and somehow just--to try cases in the places where the crimes happened. Every jurisdiction has a public interest in punishing wrongdoing in its own borders.

Yet there are times in which it does not make sense to try cases in the most logical places. New York seems the most fitting place to try those accused of destroying the World Trade Center. All the witnesses are there, and obviously New York has a burning local interest in punishing those who caused such havoc in its borders.

But these practical advantages spawn larger concerns. After all, the Sixth Amendment guarantees criminal defendants "a speedy and public trial by an impartial jury." U.S. Const. Amd. VI. It is also guarantees that "no State shall deny any person of life, liberty, or property, without due process of law." Id. at Amd. IV, s. 1 The Supreme Court has held repeatedly that a State deprives "a person" of "due process of law" if it does not afford him a "fair trial." For obvious reasons, 9/11 conspirators may not get a "fair trial" by an "impartial jury" in New York. That is why it might not make sense to hold the trial there.

How can any New York jury be impartial about 9/11? Daily newspapers routinely run stories about "dangerous Muslims." Bitter memory about 9/11 runs deep. Many people knew individuals who died in the attacks, or they know their families. 9/11 is a focal point for national anger; and it burns hottest in New York.

These are the people who will sit in the "New York jury pool" when the conspirators step into court in New York. Can they be impartial? Can they render a judgment free from passion, excitement, resentment, anger or emotion? Trials are fair when they are based on evidence admitted under law in open court. They are not fair when they are based on emotional reaction, prejudice or bias.

And how can New Yorkers insulate themselves from pervasive press coverage about the trial? As soon as the Justice Department announced that it would try the suspects in New York, the New York Post published a blaring headline: "NOW DIE! 9/11 Fiends Coming Back to New York for Trial--Next Stop Hell."

That headline reminded me about the famous Supreme Court case about trial publicity and Due Process: Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard held that every criminal defendant has a right to a "fair trial free from massive, pervasive and prejudicial news coverage" that is "reasonably likely" to lead the jury to find against him based on inadmissible evidence and emotion. The case also concluded that the trial judge has a duty to control press access to the trial, and to monitor every juryman's out-of-court attention to news comment about the case. After all, according to the Court, the State provides trials in order to "adjudicate controversies, both civil and criminal, in the calmness and solemnity of the courtroom according to legal procedures." Id. at 350, 351, quoting Cox v. Louisiana, 379 U.S. 559, 583 (1965). Those "legal procedures" include the requirement that the jury base its conclusions on evidence admitted in court, not on outside sources or emotion. Id. Prejudicial and pervasive press coverage undermines these goals when it poisons an entire population against a criminal defendant. And it undermines another key goal in our justice system: Fairness.

Many people discount fairness in legal questions. Law professors used to scoff at me when I suggested that certain results in cases were "unfair" or that legal forms resulted in "unfairness." After all, the law attempts to introduce scientific certainty into the maelstrom of human existence. It attempts to govern the ungovernable. In many ways, humans are ungovernable because nothing can control their emotions. Emotions are not reasonable; they are intuitive. Sometimes they flow from perceptible evidence. At times they do not. Legal formalism fails when it refuses to accept just how important emotion and intuition are to the human mind. Like emotion, it is difficult to quantify fairness. We know it when we feel it. We know when a process is unfair, even if we cannot articulate why. Fairness is important to the law, even if it draws ridicule from law professors. And sometimes even the law recognizes how important it is. In more hopeful moments, even the Supreme Court sees that no legal rule can survive unless it comports with intuitive fairness: "[O]ur system of law has endeavored to prevent even the probability of unfairness." Sheppard v. Maxwell, 384 U.S. 333, 353 (1966), quoting In re Murchison, 349 U.S. 133, 136 (1955).

I doubt whether the 9/11 suspects will receive a "fair trial" anywhere in the United States. But I am certain they will not receive a fair trial in New York. The fact that the New York Post blared a headline telling the suspects (who are not convicted) to "Go Die" and mentioned "hell" indicates how New Yorkers feel about the case. True, not everyone reads the Post. But it voices a very popular sentiment, and it is almost impossible to avoid seeing such headlines each day. And these are the people who will receive jury duty summonses. Can we expect them to be "unbiased, calm and serene" as they consider "only evidence produced in court" in this case? I think not.

All this begs a question: Why even bother holding a trial at all for these suspects? In theory, the State and the individual should be equally matched at trial. The State attempts to divine the "truth" about the individual's "criminal act," while the individual--whom our system presumes innocent--is free to cast doubt on all the State's claims. As long as he produces a reasonable doubt about his guilt, he must go free.

But this is all theory. Few Americans presume everyday criminal suspects innocent, let alone the 9/11 conspirators. These men have been demonized in the press for over eight years. They have been held in orange jumpsuits at Guantanamo Bay. We have all seen the pictures. Can any American truly presume them innocent? Can any American reflect on them without bias or prejudice? Yet we now expect Americans--in New York, no less--to put aside all their emotions about 9/11, as well as all the negative publicity they have heard about it for the past eight years. We now expect that they will calmly and serenely reflect solely on evidence produced in court. We expect them to drop all their emotions, preconceptions and prejudices. We expect them to magically forget all the horrible things they have been told in the press since 2001. And we even expect them to respond to a judge's command to "exclude any information I deem inadmissible," including confessions induced by torture.

If our jury actually acts in the way the law expects, the 9/11 suspects will get the "fair trial" to which the Constitution entitles them. But people do not simply shut off their bias or emotion. Nor can they erase a fact from their memory simply because a judge says: "Disregard that fact, please." In short, national hysteria surrounding 9/11 for the last decade has so inflamed the American public that there is no way the 9/11 conspirators will get anything approaching a fair trial.

In this case, emotion, prejudice and a rabid press have already made the decision.

As guilty as the conspirators may be, we should step back and ask ourselves how "fair" our process truly is. And while we're at it, perhaps we should wonder whether we even want "fairness" for "monsters."

But if we sacrifice fairness in one case, what happens in the next one?

INTENT AND THE FIRST AMENDMENT : POLICING THE IMPOSSIBLE

AN ESSAY

Over the last few weeks, I've had the chance to read some Supreme Court cases. I always keep a long list of cases I want to read. I have not had much time to write as much as I'd like lately, so I've taken the chance to read a few. That's not to say that Supreme Court cases freshen my outlook. To the contrary, they often confirm my overriding belief that the Supreme Court is full of shit. As a satirist, I need to see foolishness at work in order to properly mock it. Both sadly and thankfully, the Supreme Court keeps me well-stocked with preposterous arguments, as well as unabashed ideology masquerading as neutral legal principle.

If I had to choose an area of constitutional law that interests me the most, I would choose the First Amendment. The First Amendment is the soul and conscience of the Constitution. It is the intellectual nucleus of our liberal republic. Although the Framers may have conceived it very differently than the way we understand it today, it is a beacon of individual hope in an otherwise dully administrative document. The First Amendment protects the individual freedom to speak, write, think and express ourselves as the people we are. It forbids government from punishing us because we hold beliefs or profess religions. It also guarantees a free press, ensuring that--at least in theory--every voice has a forum to be heard. While that may not technically be true in an age when money translates into the power to circulate messages, it at least espouses a strongly positive ideal: That all voices have worth, no matter how much the majority rejects them.

These are metaphysically good principles in which anyone can believe. In fact, they are so good that both American patriots in the 18th Century and revolutionaries in later times died for them. Without the First Amendment or something like it, we could not truly say what we mean in life. And when we cannot say what we mean, we cannot be who we are. In that sense, the First Amendment is all about individuality. That is inspiring. That is why I like studying it. It is not just about property and penalties. It is about ideas and expression. There are not many legal areas that impact such profoundly philosophical questions. I like profundity more than banality.

But there is a sharp distinction between First Amendment theory and Supreme Court practice. For better or worse, nine men and women have the sole authority to determine whether government violates First Amendment principles in individual cases. In these clashes between the individual and government, the Court sometimes favors liberty. At other times, it permits government to stamp out individual self-expression. Supreme Court justices say they "rule according to the law." But in First Amendment cases--as in virtually all hotly-debated constitutional areas--the justices barely mask their own political and ideological leanings. They use law merely as a cloak to justify deeply biased political conclusions. Behind all the technical analysis and supposed detachment (many justices abandon detachment altogether) stands stark, flawed humanity. Despite their pedigrees, resumes and degrees, justices are human beings. And human beings are woefully imperfect.

When it comes to the First Amendment, the justices' personal values influence everything they do. If they do not like certain messages, they will find a way to voice hostility toward them. This takes some artifice, of course, because the Constitution forbids government from suppressing speech "solely because it disapproves of the content." But the Court has fashioned doctrines to outmaneuver this result. It allows government to target speech if it artificially regulates the "time, place and manner" in which the speech occurs. So if a city wants to stop communists from speaking, it can say they can only hold a parade on Tuesday at 3 AM in some uninhabited back alley. Obviously, government does not like communist messages. Although it cannot literally ban communism as "content," it can achieve the same result by targeting the "time, place and manner" of communist speech. In this way, the Supreme Court allows government to cloak its own hostility toward certain ideas by phrasing its disapproval in more "neutral ways." The result is often the same: Government does not like certain speech and successfully suppresses it.

Our Supreme Court has burrowed deeply into the First Amendment. The freedom to express individual ideas carries so many exceptions that it is now almost an illusory right. Without going into exhaustive detail, government can suppress speech not only because it occurs in "inappropriate places (ie, schools)," at "inappropriate times (ie, late at night)" or in an "inappropriate manner (ie, too loud)," but also because the speech itself is categorically "obscene," "defamatory," "inciting," or "reasonably likely to lead an average person to come to blows with another." The burden lies on the government to establish that the "dangerous speech" falls into one of these categories, but the Court has been surprisingly accommodating toward government over the years. In fact, it has been so accommodating that it has permitted government to regulate speech even beyond the "traditionally unacceptable categories."

Renton v. Playtime Theaters, 475 U.S. 41 (1986), provides a ready example. That case involved a municipal effort to crack down on porn shops. It was clear that the city simply did not like porn, even though porn is technically "speech" under the First Amendment. So the city enacted zoning laws that forced porn shops into run-down industrial neighborhoods. The law treated porn shops differently solely because they engaged in the porn business; in other words, their speech made them targets. But the Court did not call this "impermissible content regulation." Rather, it fashioned a new exception to the First Amendment: the "secondary effects doctrine." Through this sleight of constitutional hand, the Court proclaimed that government does not violate the First Amendment if it merely wishes to regulate the "effects of speech on the community," rather than the "speech itself." Under this approach, the city in Renton just had to say it enacted the law because it wanted to keep crime down and property values up. Then it said that porn "speech" caused crime to rise and property values to sink. The Court validated the restriction and the porn shops had to move.

In 2002, the Court revisited Renton in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). There, the city enacted an ordinance forbidding more than one "adult business" from operating in the same building. No other business was subject to the restriction. The city said it enacted the ordinance because it wanted to control the "secondary effects" of "multiple adult businesses" in the same vicinity. It invoked the earlier Renton case for support, even though it had no real evidence to show that splitting up two related porn shops in the same building would reduce crime or boost property values. The Court was satisfied with a cursory 1977 study that anecdotally linked porn shops with higher crime rates, even though that study predated the ordinance by more than a decade. In sum, the Court had no problem sustaining a clearly speech-prohibitive, discriminatory law by invoking a doctrine it invented only sixteen years earlier.

In my view, this shows the Court's great willingness to ignore the First Amendment when its members do not like the speech at issue. Obviously Chief Justice Rehnquist and Sandra Day O'Connor did not like porn shops...just look at them:


As much as the majority in Alameda Books may have believed that "constitutional jurisprudence" dictated their conclusion in the case, I venture that it was simply a value judgment. Republicans (all five justices in the majority here were Republicans) don't like porn--well, at least publicly they say they don't. Those values influenced their decision whether to allow government to regulate it. After all, the law in Alameda Books specifically targeted only porn shops. The regulation turned upon the content of the speech. Although that seems to violate the First Amendment's ban on "content regulation," the Republicans found a way to sidestep that result. How? Simple: Values. When a justice doesn't like speech, he or she will find a "legal exception" to suppress it. That's the problem with law.

But there is more to the story. Justice Kennedy issued a bizarre concurrence in Alameda Books that brings another troublesome issue to the fore: Legislative intent. Kennedy--also a Republican, but a grandiose one with a penchant for self-righteous oratory (he's Catholic, too)--said he was "troubled" by the liberal argument that the statute in the case targeted porn shops "solely because of their speech." So he quieted himself by reasoning that a city could rely on the "secondary effects doctrine" as long as it did not "proportionally affect speech." In Kennedy's view, the law in Alameda Books was sound because it had an effect on bad "secondary effects" (good) without affecting the "quantity of speech" (bad) in equal measure. Put another way, because the legislature only specifically targeted "secondary effects" and allowed porn shops to open under separate roofs, it reasonably lowered "secondary effects" without "completely muzzling their expression."

This is a fanciful distinction. In essence, it appears that Justice Kennedy believes that a legislature's stated intent suffices to determine whether it has adopted a "content-specific" speech regulation. Here, it seems obvious that the Los Angeles city council did not like porn shops because they engage in "porn speech." It offended the councilmen's values. They simply did not like the speech. But they escaped constitutional consequence because they said they were concerned about "secondary effects," not the "speech itself." The statute visibly discriminated against porn shops based on their speech, yet Justice Kennedy said that was fine because the legislature had the right intent.

It defies belief to say that a city would not "reduce the quantity of certain speech" if its regulations drive its speakers from the marketplace. Why else would the city want to close down porn shops if it did not like what they were saying? It is too easy to mouth the words "secondary effects" when in fact the legislature flat-out doesn't like porn.

These are important questions because speech regulations are dangerous. When government succeeds in suppressing speech, it gains precedential authority to suppress even more. When the Supreme Court simply goes along with the program, our rights as individuals steadily decline. True, no one wants to crusade for a porn shop's right to sell smut. But the First Amendment does not distinguish between right and wrong speech. If it is speech, we presumptively protect it. Individual freedom depends upon the freedom to express ourselves. And when the Supreme Court slowly allows government to bar us from speaking in certain ways, our liberty slowly suffocates, too.

In short, Supreme Court justices should defer to the individual interest in self-expression in doubtful cases, not the value-laden judgments of local governments. If it allows government to regulate speech content merely by proffering a flimsy "secondary effects" justification, it will not take long to dismantle the First Amendment. If there is one constitutional guarantee that we must defend, it is the guarantee that government will presumptively not regulate the substance of our thoughts and expressions, no matter how unpopular they may be.

CONTRACTS ARE CONTRACTS, SUPREME COURT RULES

NEWS FLASH

WASHINGTON, D.C.--Reason, Commerce, Justice & Free Beer has just learned that the United States Supreme Court has ruled that "a contract is a contract" in the much-followed case Gaffaello Mutual Equity Partners LLP v. Marquez, No. 08-9851. Scholars and lawyers alike have reacted with surprise to the Court's decision. "We expected a narrower ruling," said Mr. Thomas J. Knickerbocker, Esq., partner at New York's Knickerbocker, Chance & Willoughby LLC, a prominent Wall Street law firm. "We thought the Court would be more straightforward. But it simply said 'a contract is a contract.' This is a complicated idea. It is hard for both lawyers and the public to understand."

Today's ruling has broad implications for the business community. It also represents a milestone in legal reasoning and rhetoric. The case arises from a dispute between a janitor, Mr. Rodolfo G. Marquez, of Grand Concourse, The Bronx, and Gaffaello Mutual Equity Partners, a large Wall Street investment house handling more than $45,000,000,000 in assets.

According to filings and the Court's decision, Mr. Marquez orally agreed to "use best efforts" to "satisfactorily" clean every toilet located at Gaffello's office building in downtown Manhattan. In return, an unnamed agent acting for the investment house promised to pay Mr. Marquez $40 per day "until told otherwise" and "subject to all reasonable alterations by promisor." The agent allegedly also told Mr. Marquez that he had "to supply his own materials" and he had to "wipe all shit and piss from all affected toilet facilities to the satisfaction of any Gaffaello director to the extent permitted by applicable law." Mr. Marquez allegedly acquiesced to Gaffaello's terms. He further acquiesced to Gaffaello's demand that he "waive all remedies, at law or equity, or at common justice, for any alleged breach of aforesaid agreement, be it oral or in writing."

Mr. Marquez immediately went to work. Both employees and officers found Mr. Marquez' work excellent. According to one Vice President in the Appropriations Department: "I've never seen a cleaner shitter. That muchacho sure knows what the fuck he's doing." Around the same time, an authorized Gaffaello budget deputy presented a written contract to Mr. Marquez. The written contract included all the terms to which he orally agreed, as well as a clause that imposed a duty on Mr. Marquez to "act in good faith in the performance hereof; but such duty shall not extend to promisor, Gaffaello Mutual Equity Partners LLP; and it is further agreed, covenanted and promised that promisee , Mr. Rodolfo G. Marquez, shall have no right of action, cause of action or any other legal, equitable, natural or other remedy, either now or hereafter, today or tomorrow--or forever--for promisor's wanton or negligent failure, refusal, or decision not to use good faith in the execution, performance, observation or fulfillment of the mutual covenants set forth in this, the Master Contract for the Performance of Toilet Cleaning Services, notwithstanding all oral assertions to the contrary hereof, so help him God."

Mr. Marquez signed the contract, even though he did not read English. According to a Gaffaello witness, he said: "I understand it."

For two months, Mr. Marquez dutifully upheld his end of the bargain. He cleaned 4000 toilets, scrubbed 50,000 square feet of tile bathroom flooring every night and purified 4000 toilet stalls. In the process, he overcame horrific sights and odors. He worked at least 12 hours each day. He received $31.02 for his first day's work less taxes, fees and Social Security contributions. Although he was not eligible for Gaffaello's health coverage plan, he nevertheless paid toward it because he could not understand his paycheck statement. Over the next week, Gaffaello began paying Mr. Marquez a dollar less each day. Beginning the second week, it began subtracting two dollars per day from his daily check. After reducing his daily wage to $3.29, Gaffaello stopped paying Mr. Marquez at all. Instead, it sent a junior supply clerk to inform him that "he would be paid later."

Trusting that Gaffaello would honor the contract they signed, Mr. Marquez continued working. Eventually, however, Mr. Marquez gave up. He allegedly told a Gaffaello employee that he "could not continue working without pay" and that he "had a family to feed." In response, the employee said: "You can't leave. You promised to use best efforts and to act in good faith under this contract until told otherwise." Mr. Marquez said "they could sue him." With that, he walked off the job.

Gaffaello did sue him. Within two days, it served papers on Mr. Marquez and haled him into the United States District Court for the Southern District of New York for breach of contract. Although the trial judge wondered why the dispute fell under Federal jurisdiction, Gaffaello's legal team presented evidence to show that Gaffaello was a Delaware limited liability partnership, while Mr. Marquez was a New York resident. It also showed that the contract between Gaffaello and Mr. Marquez "represented a lucrative business relationship implicating more than $75,000 in janitorial services." These facts, according to established Federal law, warranted Federal court jurisdiction. Mr. Marquez, who could barely speak English, let alone understand an argument involving Federal diversity jurisdiction, said nothing in response.

Gaffaello demanded a fast track trial. The trial judge--A. Harry Peters--had no sympathy for a recent immigrant like Mr. Marquez because President George H.W. Bush appointed him to the bench. He quickly surveyed the evidence and found that Mr. Marquez breached the contract. In a detailed opinion, the trial judge wrote: "Mr. Marquez knowingly and voluntarily assumed the obligations set forth in the contract he signed with Gaffaello. It is not for courts to pass upon the providence or fairness of written agreements between mature business actors. Rather, we must merely apply relevant law to resolve any allegation that one party breached the terms upon which they mutually agreed. Under law, we assume all terms to be valid and voluntary. In this case, Mr. Marquez has no answer to contradict the assertion that he walked off a job he contractually agreed to perform. He says he left because Gaffaello did not pay him, but that is not technically true. Gaffaello said it would 'pay him later.' This does not mean it 'did not pay' him. Gaffaello never breached the contract. Only Mr. Marquez did. Furthermore, Mr. Marquez promised to use best efforts and to comply with the contract in good faith. By walking off the job without notice or cause, he violated both obligations. In sum, Mr. Marquez breached the contract. I order him to return to work immediately, or to pay Gaffaello the reasonable value of his lost services, in an amount not less than $75,000.01."

Mr. Marquez appealed the trial court's ruling to the United States Court of Appeals for the Second Circuit. His case attracted notice from the Puerto Rican Legal Defense Fund, and their lawyers hastened to his cause. They argued that the contract was invalid because it was "unconscionable" and because no contract may bind a man to work in the United States. The three-judge panel--including two Clinton appointees--agreed. They said: "We find the contract by and between Gaffaello Mutual Equity Partners LLP and Mr. Rodolfo G. Marquez unconscionable as a matter of law. We find every argument to the contrary unconvincing. No matter what anyone says about our country or its free enterprise spirit, we refuse to entertain appellees' contention that the United States Constitution guarantees the 'unlimited freedom to bargain for employment terms.' This agreement verifiably 'shocks the conscience.' We cannot permit the contract to stand, no matter how 'voluntary' it may have been at signing. Appellees' conduct in this case borders on the sadistic. Judgment reversed."

Judge Ferguson H. Klosterbach, George W. Bush's lone appointee on the appellate panel, dissented. He wrote: "I think the trial judge was right. A contract is a contract. Mr. Marquez breached it. He is also an immigrant."

Dissatisfied with the Second Circuit's reasoning, Gaffaello applied to the United States Supreme Court for certiorari. In its brief, Gaffaello phrased the case as follows: "This is a case about the freedom to contract. It is not about fairness. It is about a willful contract breacher who did not do what he promised to do." In response, Mr. Marquez' lawyers said: "This is not a case about the freedom to contract. This is a case about unfairness and injustice. This is a case about a powerful company forcing one-sided terms upon a powerless immigrant. If this Court has a shred of decency and compassion, it will affirm the judgment of the United States Court of Appeals for the Second Circuit."

Chief Justice John G. Roberts, Jr. delivered the Court's opinion to a packed house. In a calm, steady voice, he began: "Our free market economy values fairness. But it values contracts more. In our view, contracts are contracts. Promises are promises. When commercial actors make promises, we do not excuse them lightly for failing to adhere to their commitments. This case involves promises and contracts. No matter how 'unfair' or 'unjust' those promises may seem in hindsight, we refuse to second-guess reasonable commercial actors who voluntarily make commitments. Contrary to Respondents' contention, this Court has no power to rule on 'elementary justice.' This Court applies the law. And the law in this case has a simple answer: Contracts are contracts.

"Our common law values contracts. Commerce prospers when commercial men feel assured that others will fulfill their commitments. That is why courts in our system rarely allow litigants to escape voluntary contractual obligations. True, contractual obligations only arise to the extent that parties make them freely. But there is no evidence in this case that Mr. Marquez faced 'coercion' to bargain with Gaffaello. He agreed to act in good faith, to waive his remedies and to use 'best efforts' while cleaning every toilet at Gaffaello's downtown facility 'until told otherwise.' At the same time, Gaffaello freely and voluntarily agreed to pay Mr. Marquez $40 per day 'subject to all reasonable alterations.' Mr. Marquez says that Gaffaello did not pay him. But the record clearly shows that it did. The fact that Gaffaello slowly decreased Mr. Marquez' daily wage did not change the contract. In fact, Gaffaello had every right to make 'reasonable alterations' to Mr. Marquez' pay. Mr. Marquez acquiesced to this term when he signed the contract. And--unlike Mr. Marquez--Gaffaello had no obligation to perform the contract in good faith. If Gaffaello somehow acted in bad faith, that was a risk Mr. Marquez knowingly and voluntarily assumed when he signed the contract. It is not for us to question these private contractual relations.

"We hold as a matter of constitutional law that contracts are contracts. Neither the Judiciary nor the Legislature has power to retroactively invalidate private contractual terms concerning legal subject matter. We are neither philosophers nor moralists. We are legal technicians. We do not interfere with private bargains, nor do we save private individuals from their improvident business decisions. No matter how 'shocking' the terms may have been in Mr. Marquez' case, we are not fairness referees. We simply look to the contract and the circumstances to determine whether both parties freely and voluntarily assumed their duties. If we determine that they did, our inquiry ends. If we scrutinized every private bargain for terms we considered 'unfair' or 'oppressive,' we would undermine the spirit of private enterprise that drives our free market system. We are not paternalistic. We trust the market. We do not second-guess it.

"This is not new law. Our courts have held that 'contracts are contracts' for centuries. Even our English forebears so held. In the case Coxwell v. Bainbridge (King's Bench 1612), Lord Chief Justice Coke stated the basic principle that we continue to follow today: "Hath the yeoman signed the Pact of Free Wille as aforesaid? Say he the Parchmente be void for offending that Certaine Spiritte or Ghoste of Justice that doth dwell at the Hearte of all the dealings of Menne? What of it? This Courte judgeth not for Justice nor Rightte, but for Lawe. Promise a Manne he shall builde a Bridge o'er the Thames for a threepence in Two Days' Tyme, so he must, so long he have said so of Free Minde. I be of mind that pacta sunt servanda. It be of no Moment what the bound Manne saith. The Lawe doth presume a Manne do a Thinge with Free Minde. Comes now no Evidence or Witnesse thereagainst, it being a Cleare Thinge, et.c., what be left for a Court to say? Let Menne bargainne as they please. What they say be no Matter for the Lawe, but that the Lawe allow it.'

"We could not agree more. We find that Mr. Marquez knowingly and voluntarily assumed the obligations set forth in his contract with Gaffaello. We express no judgment on the 'fairness' or 'equity' of that contract. We refuse to entertain the Respondents' invitation to sit as a permanent referee for contractual fairness. Such a role would contravene our duty to apply the law and to defend private autonomy in a free market system. Judgment REVERSED. This case is REMANDED to the United States Court of Appeals for the Second Circuit with an order to issue judgment against Respondent consistent with this opinion.

"It is so ordered."

Justices Scalia, Kennedy, Thomas and Alito joined the Chief Justice's opinion. Justice John Paul Stevens wrote a dissent. In it, he blamed the majority for "enshrining unfairness" and "exulting the powerful over the powerless." He concluded as follows: "The Constitution imposes limits upon the freedom to contract when contract terms offend our most basic sense of justice."

In a separate concurrence, Justice Scalia responded to Justice Stevens' dissent: "Justice Stevens once again proves his unrivaled ability to put his head up his dumb wrinkled ass. L0s3r, pwned!!!!"

Reason, Commerce, Justice & Free Beer is pleased to see that both collegiality and prudence are alive and well at the Supreme Court as it begins its new session.

BEYOND A REASONABLE DOUBT : WHY IS IT SO HARD TO GRASP?

AN ESSAY

Legal doctrine abounds with verbal formulae. In law school, students memorize these shibboleths. They are the “magic spells” that allow them to “correctly” analyze any fact pattern. They rarely get a chance to reflect on what these “spells” mean from a grammatical perspective, or even whether they are prudent. Rather, law school students act under immense time pressure; they can do little but learn the formula and move on the next one. I doubt that many lawyers ever really ponder famous “legal formulae,” either. But since leaving the profession, I think about them all the time. And I see that there is nothing intrinsically prudent or sacred about them. They are merely administrative tools intended to bring illusory order to the nebulous disorder of human experience.

Everyone knows the phrase “beyond a reasonable doubt.” It appears all the time in movies, plays and even rap songs. Jay-Z named his debut album Reasonable Doubt. It has a mythical ring to it; it sounds appealing, even majestic. But does anyone really understand it? What is it? People assume that lawyers and judges understand it. They even think that it leads to the truth. Yet this is error. “Beyond a reasonable doubt” is an invention. It is a good invention because it seeks to protect individual liberty from wrongful criminal conviction. But it remains invention. It does not magically entitle judges and lawyers to find the truth.

“Beyond a reasonable doubt” is a “standard of proof” that governs criminal trials in the United States. In 1970, the Supreme Court famously held that the Constitution’s Due Process Clause requires every State government to apply the standard in every criminal trial. In re Winship, 397 U.S. 358 (1970). Unless the State proves “every fact necessary to constitute the crime charged beyond a reasonable doubt,” said the Court, it denies the defendant Due Process. Id. at 364 (emphasis added). This is hopeful language. After all, “beyond a reasonable doubt” means that a jury must indulge virtually every inconsistency in the evidence in the defendant’s favor. If there is a “tie,” it goes to the defendant—and individual liberty. It forces the government to put all “reasonable doubt” to rest about the defendant’s guilt before it can take away his liberty—or life.

But today I am not writing about constitutional law. I wrote about the law on this subject as a law student. “Beyond a reasonable doubt” interests me now because it impinges upon much larger concerns, like reason, truth, evidence and belief. Unlike many other legal doctrines, this one deals with facts: What do we believe about someone? What “actually happened?” More importantly, how “certain” must we be before we condemn someone to prison or death? And because “beyond a reasonable doubt” is a “verbal formula,” it has grammatical weaknesses. Lawyers do not think about these things. They just look to see what courts said about past cases.

What is the real issue, then? The real issue is evidence at trial. The State seeks either to imprison someone or execute him. It charges him with a crime, a written definition encompassing certain “bad behavior.” To convict him, it must put forward evidence proving that his conduct falls within the written definition. The prosecutor, jury and judge were not there to see this alleged “bad behavior.” There might be rumors about it. Perhaps there are witnesses; perhaps not. For better or worse, those called upon to decide a defendant’s fate must evaluate evidence to formulate the “truth” about “what actually happened.” No juror actually sensed or perceived the alleged event. They must engage in second-hand observation and decide whether something happened. Evidence gives them sensory fodder with which to judge “the truth.” They might hear a witness’ account or see a video recording. They might hear about footprints, or bloody gloves or even confessions. Yet they might also hear that witnesses have an interest in condemning the defendant, or that they have poor eyesight, or that they were distracted, or that the police coerced a confession. All these things constrain their Herculean task: To decide “the truth,” even if they were not there to perceive it.

Yet juries cannot simply speculate on the evidence. “Beyond a reasonable doubt” is an attempt to prevent juries from simply “imagining” things about the defendant. Rather, it forces them to look solely at the evidence. Remarkably, many courts over the centuries have not understood this, let alone the “everyday folk” who comprise juries. As recently as 1994, the Supreme Court dedicated an entire opinion struggling to explain what “reasonable doubt” actually means. Victor v. Nebraska; Sandoval v. California, 511 U.S. 1 (1994). There, the Court said that “reasonable doubt” does not mean “merely possible doubt,” but rather doubt that, “after consideration of all the evidence, leaves the jury with an abiding conviction, to a moral certainty, that the charge against the defendant is not true.” Id. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). It also said that “reasonable doubt:” “[W]ould cause a reasonable person, in one of the graver and more important transactions in life, to hesitate before accepting certain facts as true…it is doubt that, after full and fair consideration of the evidence, leaves you with and abiding conviction, to a moral certainty, that the accused committed the crime charged…you may be convinced beyond a reasonable doubt yet be fully aware that possibly you may be mistaken…you may find a defendant guilty upon the strong probabilities of the case, provided they are strong enough to exclude any doubt of his guilt that is reasonable…it is an actual and substantial doubt.” Victor v. Nebraska, 511 U.S. at 18.

Did the Court really need to spend so much time on the question? After all, it would have been easier to simply look at the phrase from a grammatical perspective. “Beyond” is a preposition that implies “movement past” a particular point. It implies linear motion: One moves along a path; one reaches a point on the path; one moves beyond the point. Anything before that point is not “beyond” the point. A jury can only convict a defendant if it decides that the evidence moves beyond “reasonable doubt” about his guilt. That is the magical point on the path. The evidence must move “past reasonable doubt” in order for the State to condemn the accused.

This is the point at which the Supreme Court should have considered “reasonable doubt.” The word “reasonable” appears everywhere in the law. Unfortunately, very few courts apply a consistent definition. In many cases, judges simply use the word to impose their own standards on certain behavior, namely, standards demanding steady living, hard work and “contribution to society with regard to the property rights of others.” Yet this “normalizing” definition really misses the point. After all, “reasonable” derives from “reason,” specifically, the human capacity to find truth through the senses. A person is “reasonable” if he believes only what his eyes, ears, nose and skin nerves tell him. It is “reasonable” to believe that snow fell last night if one awakes to see the ground covered in snow. It is verifiable. It is possible to infer the fact that snow fell while you slept from the fact that you see snow on the ground now. It is based on perceptible evidence. But it is not “reasonable” to believe that God exists, because no one sees God. Well, some people say they do, but do “reasonable people” believe them? No, they don’t. “Reasonable people” believe in their senses. They are empirical. They doubt anything that their senses do not perceive. For a person who trusts reason, “truth” is a matter of perception. If the person is not there to perceive an event, he listens to what others say about it, looks at physical residue concerning the event, then decides what “reasonably happened” based on things that can be perceived. This is “reasonable thinking.”

Reasonable doubt, then, is any doubt warranted by perceptible evidence. It rules out all speculation. It is purely evidence-based. The Supreme Court did not need to introduce extraneous concepts like “hesitancy” and “important life decisions” in order to explain “reasonable doubt.” It should merely have said that “reasonable doubt” refers solely to sensory evidence. It is doubt that arises from things we perceive. As long as the evidence permits us to doubt something, we have “reasonable doubt.” Doubt is not “reasonable” if we simply “imagine” it. And if we have “reasonable doubt” in any way, we have not moved “past” or “beyond” reasonable doubt. This is the grammatical way to understand the formula “beyond a reasonable doubt:” If we have it, we are not beyond it. We must acquit the defendant. But if we don’t have it and merely imagine it, we are beyond it. That means we must convict him.

I write all this because I think many lawyers and judges merely learn verbal formulae without seriously considering what the words mean. It is one thing to mouth phrases in order to score points on a test. It is quite another to genuinely ponder what those phrases mean in both grammatical and philosophical terms.

“Beyond a reasonable doubt” is a compelling phrase for several reasons. For one, it reinforces the law’s commitment to “reason” above all else. There is no faith in the law. Spirit is irrelevant. There is only body, property, the senses and “tangible things.” Reason can govern these things; yet it is banal. After all, there is nothing remarkable or spiritually uplifting about arguing over who saw what and who owes whom what dollar amount. These are the concerns of both reason and the law.

Second, “beyond a reasonable doubt” represents the law’s attempt to sort out facts. Courts have an immensely hard time doing this because facts are elusive. No matter what courts say, facts are never determinate. Facts merely represent belief based on second-hand evidence. When courts compose long “fact sections” in their opinions, they do not recount “exactly what happened.” They are merely reciting what the court below them “believed” after applying an arbitrary standard. Put simply, courts do not like talking about facts. Facts are messy. And in the end, they are arbitrary. Once one court believes a fact, it is almost impossible to alter that fact on appeal. This has nothing to do with “truth.” It has everything to do with “administrative convenience” and “interpretation.” Judges don’t reopen factual disputes because they inevitably degenerate into “he said she said” wars long after the event. Judges get to say: “OK, this is what happened,” even if their version is not really true. Interpretation is power: The power to announce the truth, even if untrue.

Reason can help us answer many questions about our existence. I trust it in all situations in which it is valid. I think it is valid in criminal law, because criminal law addresses matters to which reason applies: External behavior that can be “directly perceived” or “inferred.” It does not involve faith or belief; at least, in should not. “Beyond a reasonable doubt” is a good standard in criminal trials because it forces juries to apply only their reason, not their passions or their prejudices. Sensory evidence produces belief or doubt in the mind. When it produces doubt in a criminal case, the defendant must go free. In this sense, the standard favors liberty. As long as jurors understand what the words “reason” and “beyond” mean, they should never have a problem understanding the “beyond a reasonable doubt” standard.

But perhaps this is exactly the problem. After all, jurors—like all human beings—do not always use their reason at times when they should. Perhaps it is too much to expect that people will always be reasonable.

JUSTICE THOMAS ON TROY DAVIS : "WHEN IT COMES TO EXECUTIONS, I DON'T GIVE A BROTHER A CHANCE"

WISDOM FROM OUR LEARNED SUPREME COURT JUSTICES

By : Mr. Clarence Thomas, Associate Justice, United States Supreme Court (1991-present) (appointed by President George H.W. Bush; confirmed by the United States Senate 51-48); Chairman, Equal Employment Opportunity Commission (1982-1990); J.D., Yale Law School (1974); Affirmative Action Beneficiary; Affirmative Action Opponent; Republican; Champion, Supreme Court Building Cafeteria Cheeseburger n’ Fries Eating Competition (1998, 2003, 2005)(Runner-Up to Sandra Day O’Connor (1999); Runner-Up to William H. Rehnquist (2004)); Member, The Federalist Society; Republican.

Early this week, my colleagues issued an extraordinary order granting Troy Davis—a Georgia death row inmate—an opportunity to challenge his conviction for a murder that happened 20 years ago. Three courts have already reviewed his conviction. A Georgia jury found him guilty in 1991. Georgia wants to just get the show on the road and put him to death. My good friend Justice Scalia dissented from this madness and I joined him. He basically said that the law requires some finality in death penalty cases. He said the law does not permit us to free convicted killers because we think they are “actually innocent.” And he said that the Constitution allows States to execute people even if they are “actually innocent.” After all, if you’re guilty “in law,” it doesn’t matter if you’re not guilty “in reality.” Here at the Supreme Court, we only care about the law, not reality.

I joined Justice Scalia’s well-reasoned dissent. But I have a right to add my own thoughts about this case. All too often, Justice Scalia gets to say all the fun stuff and I just silently sign on. This time I want to say a few things myself because I care deeply about this issue. This is a case about black men on death row. I just want to say for the record: I don’t give a brother a break. If a brother wind up on death row, shee-yit, he ain’t gonna get no love from old Uncle Thomas. That be what it is.

Justice Scalia did a fine job explaining what the law says about so-called “postconviction relief.” But Justice Scalia can be a little technical. I like simpler language, even if it involves the law. So today I’m going to explain what Justice Scalia meant in laymen’s terms. I’m also going to talk about why I don’t give a brother a break. Bottom line: When States want to execute black men, they can count on my full support. After all, the law says that States can execute convicted black men. The law says that black men can only appeal their convictions under certain circumstances. If they don’t follow the procedures—or the appeals court affirms the conviction—that’s it: Dead playa walking. I respect the law in this area. And the law says we need finality after juries speak, innocence or not. Not just that, I’m a Federalist. States have a right to execute black murderers. As a Federal judge, who am I to stand in their way?

Let’s start with the Constitution. Let’s get rid of the argument that the death penalty is unconstitutional. Like Justice Scalia, I believe the text provides the answers here. We just need to look it up. First, the Constitution doesn’t use the words “death penalty,” “execution,” “innocent” or “actually innocent.” All it says is: “..nor shall any State deprive any person of life…without due process of law…” (U.S. Const. Amd. XIV, § 1). Well, if it says the State has to give “due process of law” before “depriving life,” that necessarily implies the State can deprive life. There wouldn’t be a rule qualifying how the State deprives life it couldn’t deprive life in the first place. So the text says States can execute people. That’s enough for me.

American tradition allows executions, too. Justice Scalia always likes writing about colonial history and 17th Century England to make sense of what the Constitution says. I like it, too. I basically just follow his lead. He is right that States used to execute people in 1787. In fact, they executed lots of people, even for stealing and adultery. They just hanged them from a sour apple tree and buried them in the pasture. They even burned and whipped slaves to death. But back in those days, killing a slave wasn’t even capital punishment, because slaves weren’t people by law. You can only execute a person. Life sure was easier back then.

Of course, liberals like to say that capital punishment is “cruel and unusual” under the Eighth Amendment. Well, we resolved that argument in Gregg v. Georgia, 428 U.S. 153 (1977). Call me old fashioned, but I’m all about precedent. When we decide a case, we need to stick by the result. In that case, we said that the death penalty was not “cruel and unusual;” so out goes that argument. Who am I to contradict the Court? We need to follow what we said in the past, and in 1977 we said that capital punishment is not “cruel and unusual.” That’s enough for me to throw out any liberal contention to the contrary. Precedent is precedent.

Being a Supreme Court justice is not as hard as you think. You just look at the text, listen to Justice Scalia’s lectures about American tradition and check to see if the Court has already said something about the issue in the past. If it has—and you agree with the result—you follow it. If it hasn’t, you do whatever you want. In some tougher cases, the Court says something in the past and you don’t agree with it, like in Roe v. Wade, 410 U.S. 113 (1973). In those cases, you need to overrule the law. But that’s not the case here.

This case involves a Federal law called the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Although Justice Scalia discusses the statute at length in his dissent, I want to discuss it in simpler terms. Basically, AEDPA makes it tough for convicted black murderers to throw out their convictions. Congress enacted the law because black guys were gumming up the system by filing hundreds of Federal petitions asking for “writs of habeas corpus.” For those who don’t know, “writs of habeas corpus” allow black guys to challenge their State convictions in Federal court (don’t ask me anything else, like what it means in Latin, because I don’t know; ask Justice Scalia about that). This took up way too much time. I’m talking decades; executioners got out of practice. Some black dude might have committed murder in 1978, yet the State wouldn’t get around to strapping him down to the lethal injection table until 2007. I echo Judge Joe Brown when I say: “Justice delayed is justice denied.”

Thankfully, the AEDPA cut down on these delaying tactics. Now, black guys get one shot at habeas corpus. And Federal courts can’t overturn a State conviction unless it rests upon a “clear violation of constitutional law as construed by the Supreme Court.”

Basically, AEDPA says: “Screw you” to all black guys who think they can land a “Get out of Jail Free Card” from some Clinton appointee in Federal court. And there is nothing wrong with that. After all, the law is the law. Who am I to question the law?

But this is where Troy Davis comes in. Troy Davis is a convicted black man. He appealed all the way through the Georgia State courts, then applied for habeas corpus in the Federal courts. He lost every time. In every case, the appeals courts said that the “evidence was sufficient” to sustain his conviction. Under AEDPA, he had his one shot at habeas. He lost. Now, he’s trying to appeal directly to the Supreme Court. After losing three times, his lawyers dredged up some new evidence. They say that all the witnesses who said he killed the security guard perjured themselves. These witnesses have even sworn out affidavits recanting everything they said about Davis; they all say the accomplice killed the guard, not him. In other words, Davis is trying to say that he is “actually innocent,” and that it would be unconstitutional for Georgia to execute an “actually innocent man.”

No it wouldn’t. Like I said before, the Constitution doesn’t say anything about “innocence” and “execution.” Rather, the law requires us to allow Georgia to carry out the execution as scheduled. This is not about innocence. This is about law and procedure. Procedure says that black guys get only one shot at habeas under AEDPA. Davis got it. Our court rules say that black guys can appeal directly to the Supreme Court only in “exceptional circumstances.” U.S. Supreme Court R. 20.4(a). Yet these are not “exceptional circumstances.” Davis is not the only black murderer who says “he’s innocent.” I don’t care whether all the witnesses recanted their testimony. This is not a new argument. AEDPA bars federal courts from rehearing any argument that has already been made. Davis is just repeating himself, no matter what affidavits he’s shuffling. Procedure says Davis is done. Who am I to question procedure?

I fully join Justice Scalia’s remark: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually innocent.’ Any claim based on ‘actual innocence’ is not constitutionally cognizable.” In re Davis, 557 U.S.___ (2009)(slip op. at p. 2). Let’s be honest here. Troy Davis had a full and fair trial. It does not matter that all the witnesses recanted their testimony and that police investigators admitted they coerced people to accuse Davis. Georgia paid for the trial; are we going to make Georgia pay for another one? Nor does it matter that Davis’ attorney bordered on ineffectiveness. Davis had a fair trial. The jury found him guilty. By law, that verdict subjected him to Georgia’s criminal code. Georgia’s criminal code prescribes the death penalty for murder. The jury imposed that sentence. The State afforded Davis all the procedures it could possibly give him. Not only that, Davis took his innocence claim all the way through both Georgia’s court system and the Federal courts, despite the AEDPA’s prohibition.

Put simply, Davis has had too many chances. The State has paid exorbitant sums defending against Davis’ frivolous arguments. He has exhausted all his legal remedies. It’s time to let Georgia inject this guy with some potassium bromide. This is what the law requires. I follow the law.

I also join Justice Scalia’s observation that Davis’ case represents a “capital conviction in full compliance with law.” In re Davis, 557 U.S. __(2009)(slip op. at p. 5). Here on the Supreme Court, we look no further than the law, provided we agree with it. In this case, the law is the AEDPA. The AEDPA prescribes procedures intended to stop black guys from gaming the criminal justice system with frivolous “innocence claims” decades after they shoot police officers. Additionally, the AEDPA preserves the State’s interest in quickly executing black criminals, as well as protecting the finality of jury verdicts. Remember, we’re talking about law. Under law, we must believe the jury. Juries decide facts, not judges. In this case, the jury said that Davis killed the security guard. Who are we to question a jury, even if we later learn that the jury heard perjured testimony? We need to put our foot down on appeals like this. Every black guy on the planet is going to say “it wasn’t me.” Does this mean we have to grant a new trial every time?

I can tell you this: “Not on this negro’s watch.” From where I’m standing, juries are always right, especially when they sentence black guys to death. I’m not going to contradict a jury, nor am I going to stop a southern State from executing a black man. Federalism says that States have a right to execute black men in their own borders according to local law. There’s nothing unconstitutional about that. States have rights, too, not just black murderers. The Constitution gives you the right to fair trial, not the right to escape execution for “innocence.” Like I said, the Constitution doesn’t use the words “innocent” or “execution.”

I need to say a few more things about “innocence.” All these liberals are up in arms about Justice Scalia’s remark that the Constitution does not prevent the State from executing “actually innocent” black guys. They say it shocks the conscience to allow States to execute people who may be “guilty in law” but are “actually innocent in fact.”

I disagree. On the Supreme Court, we deal with the law, not with facts. From where we sit, there is no truth beyond what the law prescribes. I don’t care if a convicted defendant totally undermines the basis upon which the jury found him guilty. In law, we must trust the jury. We need some finality in our system. As judges, we cannot philosophize about “truth” and “facts.” And we don’t need to: Who needs “truth” when you have law? Law provides all the answers, even if they are fictional. We don’t listen to conscience. We listen to law. Conscience is uncertain; law is crystal clear. In Troy Davis’ case, the law clearly dictates that he “had his chance.” It does not matter what “actually happened.” If we had to weigh the “truth” in every death penalty case, States would never get to lethally inject, shoot, hang, electrocute or gas anybody, black, Hispanic or Cherokee. As judges in a Federal system, we cannot tolerate that result. We must follow the law, not the truth.

Truth is for philosophers. Law is for administrators. We are just trying to settle on some orderly administration here. That’s all Justice Scalia was trying to say. I agree with him. I’d also like to add one personal comment about Troy Davis’ “actual innocence” argument: “Playa, pleeze.”

Now would you please excuse me? I have more important things to do. It’s lunch time and there’s a cheeseburger n’ fries competition today. If I don’t practice now, I might lose to Justice Alito.