Balkinization  

Thursday, October 09, 2008

The Five Worst Supreme Court Decisions of the Past Fifty Years

JB

David Savage of the L.A. Times asked me to list the worst Supreme Court decisions of the past fifty years-- dating back to 1958. It's hard to say what makes a decision bad. It could be an incorrect reading of precedent, a mangling of history, or a failure to exercise judgment and understand the long-term consequences of a decision. In any case, here is a list of five decisions that I think, for various reasons, are the worst of the past half-century, and why I think they were bad.


1. Clinton v. Jones (1997). Clinton v. Jones held that sitting Presidents may not delay civil litigation directed against them during their term in office. Clinton v. Jones badly misjudged how a president's political opponents could use the civil justice system to create scandals and bog down a presidency, thus effectively hijacking most of Clinton's second term. I am pretty certain that if the Justices had a do-over, Clinton v. Jones would have come out the other way.

2. Bowers v. Hardwick (1986). Bowers held that states could imprison homosexuals for having sex with their partners and it facilitated many different forms of discrimination against gays and lesbians. It is one of the worst civil rights decisions since Plessy v. Ferguson (1896), which gave the Supreme Court's blessing to Jim Crow.

3. Bush v. Gore (2000). Bush v. Gore was a self-inflicted wound that made the Court appear overtly partisan. It compounded this problem by suggesting that the new rule it announced would probably never apply to any future case. By intervening in an election dispute that would have been resolved by Congress without its help, the Court made itself partially responsible for the debacle of the last eight years.

4. San Antonio Independent School District v. Rodriguez (1973). This decision is not well known but had important long term effects. It held that education is not a fundamental right and effectively announced the end of constitutional protections for the poor. It shifted the focus of constitutional reform of public education from class and race to just race, which proved to be a dead end. Moreover, it helped divorce the question of racial integration from issues of school quality and equal educational opportunity, which, along with shifting demographics and housing patterns, made racial integration increasingly irrelevant to the problems of inner city schools. The next year, the Supreme Court decided Miliken v. Bradley (1974), which relieved suburban school districts of most of their obligations to work with inner city school districts to integrate schools and share burdens. Together, Rodriguez and Miliken made Brown v. Board of Education practically irrelevant, with the result that our public schools today are once again heavily segregated by race. If any two cases can be said to have "overruled" Brown in practice, it would be the deadly duo of Rodriguez and Milliken.

5. United States v. Miller (1976). Another little known decision with important ramifications, Miller held that when a person reveals information about themselves to a third party, they waive all their Fourth Amendment rights to privacy. This decision makes the Fourth Amendment increasingly irrelevant in an information age where people must share personal information-- including health and financial data-- with others all the time. As the Internet has made privacy a central civil liberties concern, Miller made the Constitution's central guarantee of privacy largely ineffective in the digital age.

No doubt one could extend the list. Obviously, your list of worst decisions will depend heavily on your views about constitutional interpretation as well as your politics. People who oppose abortion rights would certainly list Roe v. Wade and Casey v. Planned Parenthood as among the worst decisions of all time, much less the past 50 years. Probably Kelo v. New London will top many people's lists, although I think that whether Kelo is correct or not, it prove to have fewer bad consequences than many people have feared, largely because public pressure will lead state and local governments to impose new limits on takings practices.

Sometimes it is difficult to know how bad a decision is until many years later. There are many cases that, when they originally came down, I thought were very bad indeed. However, years later, even though the reasoning remains bad, the Court effectively distinguished or confined them, or their bad effects were limited. Chou En Lai once said of the French Revolution that it is too soon to tell whether it was a success. The same can be said, in reverse, for whether a Supreme Court decision is a disaster.

If I wanted to make a list solely of bad interpretations of the Constitution of the past fifty years, the list would be much longer. Here I limit myself to bad interpretations that also had pernicious consequences-- where the Supreme Court not only made really bad constitutional arguments but was willfully blind to the consequences of what it was doing.

Bowers v. Hardwick is a little different: I had little doubt when it was decided in 1986 that eventually the case would be reversed or made irrelevant by legislation, although during the 17 years it was on the books it had very bad consequences for gays and lesbians. But Bowers seemed remarkably homophobic-- the Court went out of its way to rewrite the Georgia statute so that it concerned only homosexuals so that it could avoid addressing the rather embarrassing fact that the statute banned sexual conduct by gays and straights alike. And the opinion was such a slap in the face to gays-- at one point Justice White labels their claims facetious-- that I thought it was really unworthy of the Court, and therefore belongs in the class of worst decisions.

As you will see from my list, some of these are cases where the Court intervened when it should have stayed out, and some are cases where the Court left an issue up the political process where it should not (Kelo, by the way, falls in that category, if you think it is one of the worst.). The idea of good or bad judging is really orthogonal to the hackneyed debates over judicial activism and judicial restraint. If a constitutional right should be protected, courts shouldn't refuse to protect it.

Feel free to give your own list of the worst decisions of the past 50 years (from 1958 onward) in the comments.






Comments:

First on my list would be Buckley v. Valeo, which has given us the lunatic system of campaign financing we have, not to mention the further entrenchment of the two-party duopoly. And, of course, no Congerss ever voted on the "legislation" that emerged from Buckley because no rational representative would have supported it. It also exemplifies the problems with decisionmaking by multi-member judiciaries, inasmuch as what emerged was the consequence of "median justices" who were unwilling, as were some of their colleagues, to invalidate it in its entirety, or, as with other colleagues, uphold it in its entirety.

And the case I'd knock out to make room for Buckley is probably Rodriguez, since I think that it would have been questionable, if not disastrous, for federal courts to get into the intricacies of school financing. As a matter of fact, a lot of state courts, implementing state constitutions, have done so, with mixed results, and I suspect that things have gond better than they might have precisely because they are "local" judges instead of more remote federal ones.
 

Ditto on Buckley. I'm not concerned with the so-called "two-party duopoly", given Duverger's Law, but the equation of money with speech strikes at the heart of equal citizenship.
 

One reason why Rodriguez is important-- and why it was not enough to leave the issues of school finance solely to state courts-- is that state courts were often hamstrung by state constitutional provisions that limited the ways that tax revenues could be shared and that took for granted outmoded methods of raising and distributing revenue for schools, not to mention their need to respect the structure of existing school district boundaries. As in the legislative redistricting cases, federal courts were not bound by state constitutional law restrictions and could order reforms in how revenues were shared that state courts could not.
 

I'd vote for INS v. Chadha or Morrison v. Olson (A pox on formalists and then one on functionalists.) Many might vote for Washington v. Davis though.
 

"but the equation of money with speech strikes at the heart of equal citizenship."

Ranks right up there with the equation of air and speech. How exactly DO you expect people to exercise their right to freedom of the press, if they can't spend any money to buy paper and ink, or rent a printing press?

The idea that our constitutional rights go out the window the moment we have to spend money to effectuate them is insanity.

My nominee? Wickard v Filburn. The moment the Court took it's bottle of whiteout to the words, "interstate" and "commerce" in the interstate commerce clause. Turning it into the grant of general, unlimited regulatory power the constitution was specifically crafted to NOT grant Congress.
 

I did a blogpost about this once, though not constrained to the past fifty years (so Wickard's not eligible here). Buckley's on there, as is Kelo.

I have since added Washington v. Glucksberg (nullifying the Ninth Amendment) and Blaisdell (nullifying the Contracts Clause), but the latter also falls outside the fifty-year window.

Readers should also be made aware of The Dirty Dozen.
 

My nominee would be Whren v. United States. Given the scope of traffic and other regulatory offenses, it effectively repeals the Fourth Amendment in vast swaths of our daily lives.

Confidential to Brett: Wickard was in 1942. Perhaps conservatives are living in the past...
 

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At the risk of straying outside the narrowly drawn lines of the post, this seems like a good time to plug ACLU's 100 Greatest Hits, an interesting read for folks of a certain persuasion. (Am I obligated to add that I'm on the board of my local chapter?)
 

Rather than offering decisions with which I have a policy disagreement, I will limit my list of worst decisions where an outlaw Court either rewrote express provisions of the Constitution or fabricated new provisions of the Constitution and the judicial amendment of the Constitution caused a substantial adverse impact on the nation.

1. Roe v. Wade - The Court created out of penumbral whole cloth a constitutional right for a parent to kill her unborn child and 50 million children have been killed through abortions since that decision. Only the Soviet and Chinese communist holocausts are comparable in loss of life.

2. Wickard v. Filburn - The Court rewrote the Article I provision granting Congress the limited power to regulate interstate commerce and expanded it to include regulation of any act no matter how unrelated to interstate commerce. Wickard was arguably the lead case destroying constitutional federalism and permitting today's federal bureaucratic behemoth. (While Wickard falls just outside the 50 year limit, its impact is so pervasive today that it must be included on such a list.)

3. Kelo v. New London - The Court eviscerated the public purpose limitation on eminent domain by permitting the government to seize the property of one private citizen and give it to another for non-public use. The citizenry is not even safe in their own homes any longer.

4. Plyer v. Doe - The Court fabricated a right for illegal aliens to demand government services. This piece of judicial mischief is drawing illegal immigrants into the country to obtain services and literally bankrupting state budgets.

5. Boumediene v. Bush - The Court invented a constitutional right for foreign enemy combatants to petition domestic federal courts to challenge the military's designation of them as prisoners of war. Worse still, in the exercise of this "right," the Court arrogated for itself the express Article I and II powers of the elected branches to set rules for captures. The recent stayed order of the DC district court to compel the immigration of terrorists in violation of federal immigration law is just the beginning of the mischief that will result from this outlaw ruling.
 

How about a "Five Best" list?
 

They call him Zhou Enlai nowadays, JB.
 

i always disliked mistretta, i thought ledbetter was quite bad, buckley, Raich, and i can't quite believe i'm saying this, but i agree with Mr. DePalma - Kelo was really really bad.

though Bush v Gore wins, hands down.
 

"Only the Soviet and Chinese communist holocausts are comparable in loss of life."

At approximately 200 million sperm per issuance, it seems likely each of the gentlemen here have contributed to the loss of vastly more lost lives, even stipulating that some seem more inclined towards Onanism than others. The "life" frame is one of my favorite bits of verbal legerdemain, distracting from the true issue, often buried and unrecognized even in the minds of would-be "lifers": furtherance of cultural norms enforcing status of woman as baby machine, woman as chattel.

Reminds me that I still need to get around to "What Roe v Wade Should Have Said".
 

"Bart" DePalma:

1. Roe v. Wade - The Court created out of penumbral whole cloth ...

I guess "Bart" hates Griswold as well ... but isn't man enough to say it....

Cheers,
 

How about Gonzalez v. Carhart?

Even if one agrees with the result (which I do not) Justice Kennedy's opinion smacks of Bradwell-style paternalism and the Court's attempt to distinguish the 2000 Carhart decision was weak at best.
 

Many good choices listed on here, but I've gotta give a shout-out to McCleskey v. Kemp, in which the Supreme Court insisted that they neither heard nor saw any evil in heavy racially-discriminatory application of Georgia's death penalty statute, and which has been far-reaching in its implication that a law with disparate effects on minorities (such as stricter penalties for crack cocaine than for powder) is acceptable as long as it falls short of mentioning brown people or lynching. I believe it was the case Powell regretted his vote on the most, even more so than Bowers.
 

With respect to Prof. Balkin's list, he's totally wrong about Clinton v. Jones. Many liberals don't like that decision because it brought down Clinton on what they see as spurious charges, but yes, if the President actually did commit a tortious act before becoming President, you should be able to sue him or her and take discovery.

Clinton had no need to lie under oath. All he had to do was admit he had sex with Ms. Lewinsky. It isn't the Supreme Court's fault that Clinton perjured himself.

Prof. Balkin is also wrong about Rodriguez, in that this is a really close question. It really is a can of worms to create suspect classifications based on wealth, even though Professor Balkin is right about the effects.

He's right about the other three cases.

Here's my list:

1. Bush v. Gore. This was a classic political question. It's up to the states how they count and recount votes and it's up to the House of Representatives to overrule them if they get it wrong. There's no role for the Supreme Court-- and especially one divided upon partisan lines. This will go down as the Dred Scott of the 20th Century (and note that 2000 was still part of the 20th Century, which started in 1901).
2. Raich v. Ashcroft. Conservatives are right about this one. The federal government that has the power to prohibit you from growing a plant in your own garden for your own medical use is a federal government of basically unlimited powers. (Kelo gets honorable mention here.)
3. Burdick v. Takushi. This is a personal pique. But in a republican form of government, write in votes should count. The Constitution nowhere requires a 2 party system (even if certain of its provisions favor one), and voters should be able to vote for whomever they want to.
4. Tison v. Arizona. This upheld the death penalty for a couple of youngsters who drove the getaway car for their father when he committed a murder that they didn't want him to commit. Yes, the kids were wrong to do what they did. But if anything is cruel and unusual punishment, it's that. (Michigan v. Harmelin gets honorable mention here, upholding a 50 year sentence for drug possession.)
5. Regents of the University of California v. Bakke. This case totally fouled up affirmative action law. It was a 4-4 decision, with Justice Powell providing the tiebreaking vote by prohibiting the form of affirmative action that might be plausible under the law (i.e., to remedy past discrimination) while allowing affirmative action under an open-ended "diversity" rationale which would permit widespread discrimination against historically oppressed groups (such as Asians) as well as ensuring that affirmative action programs be permanent rather than temporary. EITHER the reasoning of the dissent or the plurality would have been a better decision than Powell's awful concurrence; instead, Powell haunts us from the grave, as his concurrence is still basically good law.
 

I don't know how important I'd say this decision was, but I'd nominate Los Angeles v. Lyons, a terrible decision in standing law. From Oyez:

Facts of the Case

In 1976, police officers of the City of Los Angeles stopped Adolph Lyons for a traffic code violation. Although Lyons offered no resistance, the officers, without provocation, seized Lyons and applied a chokehold. The hold rendered Lyons unconscious and damaged his larynx. Along with damages against the officers, Lyons sought an injunction against the City barring the use of such control holds.

Question

Did Lyons's injunction against the use of police chokeholds meet the threshold requirements imposed by Article III of the Constitution?

Conclusion

No. In a 5-to-4 decision, the Court held that federal courts were without jurisdiction to entertain Lyons' claim for injunctive relief. The fact that Lyons had been choked once did nothing to establish "a real and immediate threat that he would again be stopped. . .by an officer who would illegally choke him into unconsciousness." The Court held that in order to establish an actual controversy, Lyons would have to show either 1) that all Los Angeles police officers always choked citizens with whom they had encounters, or 2) that the City ordered or authorized officers to act in such a manner. Lyons was thus limited to suing the police and the city for individual damages.
 

With respect to Prof. Balkin's list, he's totally wrong about Clinton v. Jones. Many liberals don't like that decision because it brought down Clinton on what they see as spurious charges, but yes, if the President actually did commit a tortious act before becoming President, you should be able to sue him or her and take discovery.

I'll have to disagree here. IMO, the potential for abuse far outweighs the interests of a single individual whose action can be tolled until the President leaves office.

I do expect the Court eventually to get this one right. Probably as soon as a conservative president is sued.
 

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I'll have to disagree here. IMO, the potential for abuse far outweighs the interests of a single individual whose action can be tolled until the President leaves office.

There would have been no "abuse" (the suit, after all, got thrown out on summary judgment) if the Clenis hadn't decided that it would be really fun to lie under oath and then drag the public through 7 months of scandal before fessing up.

The system works fine and can throw out "abusive" suits. There's no reason to "protect" the President from having to sit for a deposition, though. Telling the truth isn't the worst thing to happen to the President, you know.
 

Mark Field: "I do expect the Court eventually to get this one right. Probably as soon as a conservative president is sued."

Mightn't it be best to have some kind of balancing test, perhaps with a rebuttable presumption in favor of delay, but not an outright ban. It is conceivable that some civil case could have legitimate bearing on the Executive's fitness to perform. By such a standard Jones would have waited, properly.

These comments, of course, presuppose a substance based approach to jurisprudence, and as such have no connection to the realities of Jones.
 

Let me defend Clinton v Jones.

It may be arguable that, from a policy perspective, it would be better if sitting Presidents were temporarily immune to civil suit. I don't think that's the case, (The Jones suit did NOT paralyze the Clinton administration, and as Dilan noted, most of the mess could have been avoided had Clinton merely not committed perjury.) But that was not the question before the Court.

The question was, IS a sitting President temporarily immune to civil suit. And the Court was faced with a brute fact:

There isn't any constitutional or statutory basis for such a claim of immunity.
 

Brett:

I basically agree, though I would argue there is some room for the Court to construct some common law immunities when it comes to suits against the government. The qualified immunity doctrine of Section 1983 is one example, and the absolute immunity of sitting Presidents for tort liability for their conduct in office (Nixon v. Fitzgerald) is another one. Dismissing suits on the basis of international comity is a third.

While there isn't any provision of the Constitution providing for "king can do no wrong"-style sovereign immunity (and I therefore disagree with the Supreme Court's Eleventh Amendment jurisprudence), there was a long tradition of judicial recognition of various sorts of immunities and liability-limiting doctrines for government officials.

The key to Clinton v. Jones is that (1) as you said, there isn't any textual basis for the immunity claimed; and (2) given the powers of the courts to control frivolous claims and prevent intrusion on the office, there wasn't a sufficient policy argument to create a common law immunity.
 

There isn't any constitutional or statutory basis for such a claim of immunity.

No, but there are good originalist grounds for believing that the Founders expected the President to be immune from civil suits while in office. There are also, again IMO, good structural reasons for so holding (which the Court rejected).

Mightn't it be best to have some kind of balancing test, perhaps with a rebuttable presumption in favor of delay, but not an outright ban. It is conceivable that some civil case could have legitimate bearing on the Executive's fitness to perform.

If the case were serious enough, I'd expect Congress to investigate and even impeach. Clearly there should be no immunity in that case.

The system works fine and can throw out "abusive" suits. There's no reason to "protect" the President from having to sit for a deposition, though.

I'm confused on your chronology here. Clinton v. Jones came down before the deposition. Previous to that, the case had been pending for 3 years. It was not dismissed for nearly another year after that. That's a long time to dismiss a meritless suit; it's an entire presidential term.

I also think you're underestimating the impact on any Administration of such a suit. It's not just the deposition; there are, as you know, a great many decisions which require client participation before the deposition. And that's saying nothing about the practical need for any Administration to consider and deal with the political impact of the suit.
 

Dilan beat me to the post in responding to Brett, and I agree with Dilan in the main. I just disagree on the conclusion -- in my judgment, the distraction and potential for abuse outweigh the need for a private action to go forward.
 

I'm confused on your chronology here. Clinton v. Jones came down before the deposition. Previous to that, the case had been pending for 3 years. It was not dismissed for nearly another year after that. That's a long time to dismiss a meritless suit; it's an entire presidential term.

Mark, that's because Clinton's lawyers delayed it.

If they hadn't have taken their meritless case up to the Supreme Court, and they had not lied in the deposition, the suit gets disposed of in less than a year on a summary judgment.

The only reason the Jones case was at all "disruptive" is because of Clinton's own actions. If the President's honest and doesn't try to stall the suit, he or she's got no problem.
 

Well I'm going to abstain on this one, but I do have two comments:

* The worst opinion I've seen over the course of my project is the 4th Circuit's fraudulent atrocity in Hamdi v. Rumsfeld (III).

* The difference between money and speech is similar to that between submitting a brief and offering a judge a bribe.
 

Mark, that's because Clinton's lawyers delayed it.

If they hadn't have taken their meritless case up to the Supreme Court, and they had not lied in the deposition, the suit gets disposed of in less than a year on a summary judgment.

The only reason the Jones case was at all "disruptive" is because of Clinton's own actions. If the President's honest and doesn't try to stall the suit, he or she's got no problem.


I don't find this persuasive. First, IMO Clinton had a legitimate argument for immunity (Judge Wright, in fact, dismissed it on that ground). I don't buy the suggestion that he should have given up that argument, knowing that doing so might have served as precedent for the future. Second, all you're really suggesting is that he should have compressed the disruption of the suit (putting aside the issue of his truthfulness for the moment) into a shorter period of time. That doesn't strike me as helpful.
 

"No, but there are good originalist grounds for believing that the Founders expected the President to be immune from civil suits while in office."

I'd be interested to hear it. The Founders expected the legislature to have a quite limited sort of immunity to legal processes, and they wrote actual words into the Constitution to see their expectation effectuated. You won't find any such words concerning the executive branch. Presumably Madison could have written them in if it had really been intended.
 

I don't find this persuasive. First, IMO Clinton had a legitimate argument for immunity (Judge Wright, in fact, dismissed it on that ground). I don't buy the suggestion that he should have given up that argument, knowing that doing so might have served as precedent for the future. Second, all you're really suggesting is that he should have compressed the disruption of the suit (putting aside the issue of his truthfulness for the moment) into a shorter period of time. That doesn't strike me as helpful.

1. While I know some people bought his immunity argument, I think the PURPOSE was to delay the lawsuit. He was buying time, even if he lost it; it delayed the suit.

2. His telling the truth is the whole ballgame. He tells the truth, moves for summary judgment, and the case ends. There's little disruption. It isn't compressed disruption. It's far less disruption.

3. Even if you don't think the Jones case is a model of how to proceed, it's now been 15 years and we haven't seen any rash of these types of suits against the President. And there's no reason to think that if one were to be filed, the judge wouldn't be extra-careful about making sure there was no disruption. Plus, we could hope that the President wouldn't lie this time.
 

The difference between money and speech is similar to that between submitting a brief and offering a judge a bribe.

That's too facile. The central reason why Buckley is rightly decided is because while money isn't speech, it BUYS speech.

In other words, I could censor the populace by prohibiting the expenditure of money on printing presses, megaphones, microphones, speakers, podiums, lecterns, networked computers, telephones, walkie-talkies, or other communications devices, even though such a regulation in no way stops people from uttering words.

Money facilitates speech. That justifies both aspects of Buckley's holding: (1) that prohibitions on the expenditure of money to speak are generally unconstitutional; but (2) that regulations on the contribution of money for political expression may be justified as long as they are not overly speech-suppressive.

In my mind, there's no way to uphold simple expenditure limits in political cammpaigns without legitimizing the prohibition of expenditures for the purpose of speech; it would be an end run around the First Amendment.
 

Well that's silly Dilan: all you're really saying is that you think rich people have more of a right to free speech than poor people do, just as they have more of a right to competent legal representation or medical care than poor people do.

And the results of that sort of thinking couldn't be any more plain than they are right now: we live in a nation that burns the lives of people as fuel to serve the interests of money. It's not merely unjust, it's quite literally insane.
 

Well that's silly Dilan: all you're really saying is that you think rich people have more of a right to free speech than poor people do, just as they have more of a right to competent legal representation or medical care than poor people do.

Well, no, Charles.

It's rather different.

I don't see a way to allow the government to "level the playing field" between rich and poor speakers (even if this were possible) through restrictions on expenditures that would not also allow the government to restrict expenditures in order to suppress speech. You allow one, you allow the other.

Look, as hinted at in my parenthetical, I don't think it's really possible to prevent rich people from having a greater ability to speak, so you are really asking a hypothetical question anyway. But the bottom line is if you permit the restriction of expenditures on speech, you legitimize the government's power to shut down speech by shutting off the funding.

If you think this is an idle concern, you might want to look at countries like Russia where the government has close to a monopoly on mass media communication.
 

I'd be interested to hear it. The Founders expected the legislature to have a quite limited sort of immunity to legal processes, and they wrote actual words into the Constitution to see their expectation effectuated. You won't find any such words concerning the executive branch. Presumably Madison could have written them in if it had really been intended.

I think it never occurred to them that the President might be sued in a civil action. They had no experience with that sort of thing. The King and his royal governors were immune from such suits. Moreover, the separation of powers seems to cut rather strongly against it.

As for Congressional immunity, that was (a) traditional with Parliament, and (b) essential given the prosecutorial power of the Executive and the English experience of the abuse of that power. There was no such background for the King because of his immunity.

In any event, I had a couple of passages in mind, but I'm having some work done on my house and can't access all my books. I can only find one, which is from Joseph Story:

"There are other incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability."

The Court did acknowledge this passage in Clinton v. Jones, but then concluded, as does Dilan, that the obligations of a civil action wouldn't interfere with the President's duties in a significant way. That's a factual claim on which I simply disagree (and which the Court had no business finding). It also, in my view, simply ignores Story's actual words.

Even if you don't think the Jones case is a model of how to proceed, it's now been 15 years and we haven't seen any rash of these types of suits against the President.

No, but in my view the ruling is time bomb waiting to go off. It'll happen.
 

Dilan,

By that reasoning, I would have to suppose that enforcing a speed limit of 65 mph on the highways would mean the government could prevent travel entirely.

The government clearly has the both the physical and legal power to do that already if the circumstances warrant, for example, when a hurricane is about to hit. I'm not aware of anyone believing they have any authority to do it without a really good reason though, or that having speed limits is the source of their power. Regulation and suppression are not the same thing, and Aristotle's doctrine of the Golden Mean applies: both gluttony and starvation are unhealthy.

Money is money, speech is speech, and rights are things that people have, not corporations or governments per se. What newspapers, broadcasters, telecoms, and ad agencies do, they do by public charter, not by right. They have no more right to unfairly influence public opinion than they do to pollute the air with poison gas.
 

Let's not forget First National Bank of Boston v. Bellotti (1974). It changed the terms of corporate involvement in political affairs. Even William Rehnquist was outraged by it and dissented.

Previously, states could confine a corporation's actions in political contests to matters affecting its particular business. The opinion of the court, by Lewis Powell, struck such laws on first amendment grounds. That was a healthy dab of grease on the path to corporate dominance of our political system.

It's clear that Powell wanted this for reasons stated in the 1971 memo that won him his Supreme Court seat; his "no harm, no foul" pronouncements in the opinion were disingenuous in the extreme.

Many other changes have taken place since, and of course there is Buckley, but Bellotti marked a conceptual shift in how we think of corporations on the political stage. It declared that they needn't confine themselves to business consciousness. They could have a shared class consciousness, weigh in as corporations tout court.

And here we are.
 

The Court did acknowledge this passage in Clinton v. Jones, but then concluded, as does Dilan, that the obligations of a civil action wouldn't interfere with the President's duties in a significant way.

My position is slightly different, Mark. The Constitution rejects the theory of sovereign immunity that Story set out. There is no sovereign immunity whatsoever in the Constitution, except the prohibition on a criminal prosecution of a sitting President. The President is clearly and explicitly subordinate to the laws of Congress (that's what "executive power" means) and that's when we are talking about OFFICIAL duty, where the case for immunity is strongest.

Thus, any immunity the President has must be a matter of common law (unless Congress chooses to immunize the President). And I don't dispute that courts have the power to grant such immunity. As I noted, Nixon v. Fitzgerald grants such immunity with respect to official duties.

But the President has the burden of proof. And the problem I have is that there's no reason whatsoever that a President WHO TELLS THE TRUTH AS HE OR SHE IS LEGALLY OBLIGATED TO DO is going to be disrupted by a civil suit THAT IS PROPERLY MANAGED BY A DISTRICT COURT JUDGE IN SUCH A WAY AS TO MINIMIZE THE INTRUSION ON OFFICIAL DUTIES.

In other words, we don't need immunity to prevent disruption, unless the President insists on lying at a deposition-- and personally, I think the solution to that problem is for Presidents to tell the truth under oath.

So to summarize, there's no Constitutional immunity. There could be a common law immunity, but only if the President proves the need for one, and there's no need for one (as measures short of immunity work fine) with respect to civil suits relating to pre-Presidential tortious activity.
 

By that reasoning, I would have to suppose that enforcing a speed limit of 65 mph on the highways would mean the government could prevent travel entirely.

No, the analogy would be that if the government could ban you from spending money on cars, bicycles, air tickets, bus tickets, train tickets, baloons, etc., the government can interfere with your right to travel. And that happens to be true.

What newspapers, broadcasters, telecoms, and ad agencies do, they do by public charter, not by right.

You might like to believe this, but the First Amendment's CENTRAL PURPOSE was to prohibit the official licensing of the press. Seriously-- even people like Robert Bork who think it doesn't protect ANYTHING else agree it prohibits that.

So if you belive the press should operate on a public charter, you need to have a constitutional amendment.
 

Many other changes have taken place since, and of course there is Buckley, but Bellotti marked a conceptual shift in how we think of corporations on the political stage. It declared that they needn't confine themselves to business consciousness. They could have a shared class consciousness, weigh in as corporations tout court.

True enough, but what exactly is the difference between corporate speech and any other form of speech by a group of people?

Again, the objection to this is much like the object to Buckley-- there's a huge line-drawing problem and the alternative to Bellotti is a First Amendment that is pretty unprotective of speech in the way it actually occurs.

(Nor would you really be able to regulate corporate speech if Bellotti were overturned, as corporations could just form single-issue PAC's that could engage in the same speech as it would be "germane" to the PAC's business.)
 

Re Bart's selection of Roe vs. Wade, I find it strange when embryos and fertilized eggs get elevated to the status of children.

Anyhow, I think DeShaney vs. Winnebago County should have been on your list.
 

My position is slightly different, Mark. The Constitution rejects the theory of sovereign immunity that Story set out.

What I'm arguing for isn't immunity in the real sense. True sovereign immunity, under a kingship, was a lifetime prohibition. Similarly, when it comes to official duties, the President can't ever be sued for them.

What I'm saying is that civil claims against a President should be tolled. The reason I say this is that I believe it creates too much of an opportunity for the demands of the judiciary to interfere with the Executive branch. Now, I think reasonable people can disagree on this, but IMHO my side of this judgment call was strongly reinforced by the Clinton case. I do NOT think Clinton's testimony had anywhere near as much to do with the delays as you do. I think that the demands of civil litigation simply shouldn't interfere with the performance of Executive duty. The cost to the country is potentially great.

I entirely agree that the President is always subject to law. The remedy for public wrongs, however, is and should be impeachment.
 

I agree with Bush v Gore's being on the list, at least adjudicated in the timeframe it was, so hastily; the Justices could have let the FL legislature nominate electors, and let the vote count proceed; then let the electoral college decide how to manage the likely parallel slates of electors, one batch for Bush, one for Gore. What Scotus did was fairly hyperpolitical in that case.

I would add to the list Lujan or Rapanos, as I think overly circuitous environmental protections in many areas.

Plus the split outcome in Lulac v Perry, though I can appreciate Scotus' sense it was nearing some political perigee.

It would be nice to have a followup when the journalist DSavage goes to publication of the LATimes' version of the list.

I would add the Hudson 4th amendment case as excess.

I thought FAIR was a disaster for independence of academia but it was ungainly from the outset, and congress can revise the substrate of its linkages between military recruitment and research funding, though there are more fundamental issues that case might have addressed.

And we may regret some of the washout from the Rokita-Crawford voter ID case within a few weeks, though Congress might revisit that.
 

I agree with Jack about the lack of consequences (so far), but Kelo v. New London still tops my list.
 

I think that the demands of civil litigation simply shouldn't interfere with the performance of Executive duty. The cost to the country is potentially great.

Can you name a single decision of Bill Clinton that was in any way impaired by ongoing proceedings in the Paula Jones case? (As opposed to the impeachment proceedings, which you concede the President should have no immunity from.)

As far as I know, the prosecution of the Paula Jones case did not affect Clinton's job performance one bit. The only thing that affected his performance was his decision to perjure himself.
 

Well Dylan, I do get the special role of the press under the Constitution, and as far as I'm concerned they can say any damn thing they please within proper limits.

But saying something for someone else in exchange for money isn't an expression of their free speech, and the NYT, Post, CBS, etc, are all in fact corporations that literally have a public charter or license to operate as a business.

Do you suppose that the 1st amendment exempts them from SEC regulations concerning financial reporting and insider trading?

I have no idea what the law is on that, but I'd bet the answer is "no", and IMO that's the way it should be. Indeed, although the Commerce Clause is something else that just doesn't interest me that much, I'd go so far as to say that the use / exchange of money in and of itself is something that should be and is entirely subject to regulation in the public interest.

And in all of this, what the Constitution actually says, what the cases say about doctrine, and how things ideally should be are three different things.
 

Well that's silly Dilan: all you're really saying is that you think rich people have more of a right to free speech than poor people do, just as they have more of a right to competent legal representation or medical care than poor people do.

No, I don't think so. By the same logic you could argue that people who are attractive and charming have more of a right to sexual liberty than people who are obese and autistic. Clearly not true. They all have an equal right against government regulation of their sexual liberties; it's just that some people will be able, in practice, to exercise their right more frequently and successfully than others. There are arguments that can be made, of course, for leveling the political speech playing field (not so much the case for the sexual one), but all such arguments must admit that leveling the playing field will suppress rights, not equalize them.
 

"I think it never occurred to them that the President might be sued in a civil action."

I think it never occurred to them that the kind of person who'd be sued in a civil action would end up as President. But I suspect that had the question actually arisen, they'd not looked kindly on the idea of executive immunity.

"That's a long time to dismiss a meritless suit; it's an entire presidential term."

No, that's a few hours spread out over an entire presidential term. Quite a different matter.
 

"How about Gonzalez v. Carhart?

Even if one agrees with the result (which I do not) Justice Kennedy's opinion smacks of Bradwell-style paternalism and the Court's attempt to distinguish the 2000 Carhart decision was weak at best."

I'd go so far as to say that Gonzales v. Carhart treats women the exact same way that Bowers v. Hardwick treated gays. The "reasoning" of Carhart II was rooted in the idea that women are not moral actors and the paternalistic state has to step in to protect them from themselves. If there's a dime's worth of difference between Carhart II and Bowers, I can't find it.
 

"I think it never occurred to them that the kind of person who'd be sued in a civil action would end up as President."

Well all that proves is that you need to study some history Brett.
 

Tray,

Sexual liberty??

That argument just shows how illogical your position really is.

People have sex with each other by mutual agreement, not by right, and in most places it is illegal to enter such an agreement in exchange for money or with someone under the age of consent.

Once upon a time it was perfectly legal in some places to own black folks as slaves and commonplace for a slave-owner to have sex with his slaves (whether by mutual agreement or otherwise), yet illegal for a white person to marry a black person or teach one to read and write.

Money is a thing: it has no rights, and exists only by mutual agreement as a social convention.

Right now were having this big debate about gay-marriage. A marriage is fundamentally a contract between two people; the legal rights we confer on such unions are purely social conventions, and the notion that such unions should be restricted to heterosexuals is nothing but uncomplicated sexual and / or religious bigotry on the part of people who thing that they have a right to impose their religious beliefs and sexual hang-ups on others by force.
 

Dilan: The system works fine and can throw out "abusive" suits. There's no reason to "protect" the President from having to sit for a deposition, though.

You can't see the possibility of a politically-motivated, abusive suit that does not get thrown out until after deposition, in which the truth during the deposition cripples the President.

That's how I would describe the Jones suit.
 

A couple of points, starting with one I meant to include last night but forgot.

Story's argument is NOT a common law argument. It's a textual argument -- he says that the words "executive power" in the grant under Art. II inherently include immunity from civil actions. It's part of the definition.

Now to some follow up.

Can you name a single decision of Bill Clinton that was in any way impaired by ongoing proceedings in the Paula Jones case?

Of course I can't, but I don't need to. I just need to know that every minute spent dealing with a civil action is a minute the President doesn't have to spend on the public interest.

The only thing that affected his performance was his decision to perjure himself.

I can't agree with this. As Just Looking points out, even the truth would have embarrassed Clinton politically and might well have cost him re-election if the answer had become public before 1996. The sole and only point of Jones' lawsuit was to embarrass and harm Clinton politically, and his deposition was a means to that end.

Now, in some cases you might well say "so be it" -- if the President commits a wrong, the public should know that. In this case, though, the issue was irrelevant legally; the judiciary has no business compelling a president to embarrass himself even with truthful testimony.

I think it never occurred to them that the kind of person who'd be sued in a civil action would end up as President.

The Founders certainly understood that people, including presidential candidates, might be sued. Then as now, the only thing necessary to get sued is for someone to pay the filing fee. That doesn't mean the suit has any merit.

Among the presidents who've been sued are Jefferson (after his presidency) and Lincoln (before). Teddy Roosevelt and Harry Truman were also, and I'm sure there are more I don't know off the top of my head.
 

I would join the addition of US v. Whren, not for the intrusiveness of traffic stops but for its making irrelevant the subjective intent of the officer. This is what makes Driving While Black a crime.

Also Harlow v. Fitzgerald, which created qualified immunity. Not only has it grown to swallow all of Sec. 1983, but it exists in a hypothetical world outside the facts of the case (would a reasonable officer, endowed with the totality of official knowledge, have believed that his conduct was reasonable based upon Supreme Court law) and has reduced the authority of lower courts to identify and remedy civil rights violations.
 

But saying something for someone else in exchange for money isn't an expression of their free speech, and the NYT, Post, CBS, etc, are all in fact corporations that literally have a public charter or license to operate as a business.

They have a charter to operate as a business, but that's different from having a charter to speak.

If the owners of the New York Times wanted to run their business as a general partnership, they could do so without any charter from the state. And that's how it should be.
 

You can't see the possibility of a politically-motivated, abusive suit that does not get thrown out until after deposition, in which the truth during the deposition cripples the President. That's how I would describe the Jones suit.

The truth didn't cripple the President. His LYING about it crippled the President.

In any event, "we need judicially created immunity because without it, the President might have to admit that he had an affair and he doesn't want to have to admit that" is a really poor argument.
 

Story's argument is NOT a common law argument. It's a textual argument -- he says that the words "executive power" in the grant under Art. II inherently include immunity from civil actions. It's part of the definition.

I know. And he's wrong. The word "executive" SPECIFICALLY means the opposite of what Story says. An executive EXECUTES the law. In other words, he or she is AT ALL TIMES bound by it. The word "executive" thus DEPRIVES the President of any constitutional immunity, which is why he needs to be specifically granted immunity from a criminal prosecution in the impeachment clause.

Look, there were royalists among the framers who Story agreed with. But they lost the debates, and the provisions they wanted were not enacted. We have had a 200 year struggle with latter-day Hamiltonians trying to rewrite the Constitution to create a King. Story is part of that tradition and should be ignored on this point.

Now, again, this doesn't prevent the courts from creating common law immunities. But my problem with Story is the same problem I have with Scalia et al. on the 11th Amendment cases-- they want to write the argument that LOST at the founding of the country back into the Constitution.

I can't agree with this. As Just Looking points out, even the truth would have embarrassed Clinton politically and might well have cost him re-election if the answer had become public before 1996.

Oh, poor Bill. He wouldn't have gotten reelected. The voters would have decided that they didn't want an adulterer in the White House. So we have to use legal immunities to permit the President to continue his lie.

The Constitution enacts POPULAR SOVEREIGNTY. That means your fellow citizens get to decide who the President is, and they get to decide it based on things that you or I might not find very important.

Look, if Bill was so concerned that exposure of an affair might have hurt his chances for reelection, he might have decided not to have the affair. Or not to run for President. But we don't create legal immunities so the President can lie to us.

In this case, though, the issue was irrelevant legally; the judiciary has no business compelling a president to embarrass himself even with truthful testimony.

That's circular. The issue was irrelevant only if immunity should have been granted. If immunity was properly denied, than the judge's ruling that Clinton needed to answer the question was the last word on the subject.
 

I didn't say anything about them needing a charter to speak; what I said was they can say any damn thing they please.

It's the part where they take money from people in exchange for services that they need a charter for, and I imagine that even a general partnership would need a business license of some sort, be subject to sales and employment taxes, etc. You wouldn't try to argue any of that infringed their speech either.
 

That's circular. The issue was irrelevant only if immunity should have been granted. If immunity was properly denied, than the judge's ruling that Clinton needed to answer the question was the last word on the subject.

Taking the simplest point first, this is wrong. The suit was meritless because it was eventually dismissed on other grounds. Clinton's answer, one way or the other, was irrelevant.

I know. And he's wrong. The word "executive" SPECIFICALLY means the opposite of what Story says. An executive EXECUTES the law. In other words, he or she is AT ALL TIMES bound by it.

I agree about the executive. That's why the argument Story is making, and that I'm supporting, is NOT an immunity argument. The person who committed the tort does not become immune to suit by virtue of being president. All that happens is that the suit is tolled until the presidency is over.

While I also agree with you about Scalia and the 11th A, and, in general, about latter-day Hamiltonians, this is not a case where your argument applies. For one thing, it's not an immunity argument. For another, it's not an argument that could be said to have been "lost" so much as an issue that never got discussed.

I also want to make it clear that I'm not supporting Story on originalist grounds. I frankly don't care what the original understanding was, whether it supports me or goes against me. I only pointed it out because Brett asked. In my own view, the proper ground for deciding the question should be based on what we today understand the phrase "executive power" to include. IMO, the experience of the Clinton case strongly supports tolling of such actions.

The Constitution enacts POPULAR SOVEREIGNTY. That means your fellow citizens get to decide who the President is, and they get to decide it based on things that you or I might not find very important.

Agreed, so that's not the issue. The issue is whether the judiciary should participate in the process by compelling testimony from presidents when the request comes from private citizens (of course it should do so when Congress, for example, demands it or when needed in a criminal case).
 

Kelo and Raisch would have to fit somewhere.
 

Taking the simplest point first, this is wrong. The suit was meritless because it was eventually dismissed on other grounds. Clinton's answer, one way or the other, was irrelevant.

Nope, Mark. The standard for discovery is simply whether the testimony is REASONABLY LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE. (I believe this is FRCP 26.) The summary judgment ultimately ruled it wasn't going to be relevant at trial. But the judge ATTENDED THE DEPOSITION AND OVERRULED BOB BENNETT'S OBJECTION TO THE QUESTION. In other words, she held it was discoverable. That's the final word on the issue.

Agreed, so that's not the issue. The issue is whether the judiciary should participate in the process by compelling testimony from presidents when the request comes from private citizens (of course it should do so when Congress, for example, demands it or when needed in a criminal case).

I don't think the judiciary is participating in the political process. They are simply making a ruling that his testimony is needed in a private lawsuit.

Bear in mind, if that is your concern, your immunity or tolling argument does not solve the problem. Has it occurred to you that the President's testimony might also be needed in a case involving other parties? And before you say "toll that case too", how about a criminal case where the defendant has a speedy trial right? (Think Gary Condit and Chandra Levy.)

There's no way to prevent presidential exposure to potential perjury prosecutions (except the most obvious solution, which is to tell the President not to lie at depositions!). There's also no way to prevent that the President might have to disclose details of a politically damaging affair. I guess they might want to think about that before hooking up with an intern.
 

Dillan: The truth didn't cripple the President. His LYING about it crippled the President.

Certainly his lying did, but we are both speculating on what would have happened had he told the truth.

In any event, "we need judicially created immunity because without it, the President might have to admit that he had an affair and he doesn't want to have to admit that" is a really poor argument.

Of course I am not arguing the President should be specifically protected from admitting an affair. I am more broadly arguing the President should be protected from having to reveal information in the course of a political witch hunt (disguised as a civil lawsuit) that cripples the President.

Are you claiming I'm all wet because admitting the affair would not cripple the President (if so, see above)? Or, are you instead claiming it doesn't matter whether the President is crippled, and a crippled President is more desireable than delaying the lawsuit?
 

Of course I am not arguing the President should be specifically protected from admitting an affair. I am more broadly arguing the President should be protected from having to reveal information in the course of a political witch hunt (disguised as a civil lawsuit) that cripples the President.

The solution to this is to empower judges, as they already are empowered, to take the Presidency into consideration when determining whether suits go forward and in what way, and to dismiss meritless suits.

Are you claiming I'm all wet because admitting the affair would not cripple the President (if so, see above)? Or, are you instead claiming it doesn't matter whether the President is crippled, and a crippled President is more desireable than delaying the lawsuit?

I'm saying I don't think that if the President acts properly, he will be crippled (admitting an affair doesn't cripple the President-- he can still do his job, even if his poll ratings go down a bit). If the President acts improperly and lies at the deposition, that's not the Supreme Court's fault.
 

To make a broader comment, when we talk about "crippling the Presidency", we don't-- and can't-- mean making the President less popular or making him or her losing an election. Unpopular Presidents and lost elections are a part of our system.

To "cripple the Presidency", you have to make the President unable to do his job. Clinton's lawyers made such an argument to the Supreme Court-- they said he would be so busy preparing for deposition and trial that he would have no time to do his duties. That was obviously not true-- Clinton did his duties just fine during the pendency of the Jones lawsuit. (Again, it is true that impeachment crippled his duties somewhat, but you guys aren't arguing for taking the power away from Congress to do that, and effectively, Congress can do that for any reason and it is unreviewable by the courts.)

I think a lot of this comes down to people thinking Clinton was an excellent President and imagining a situation where he was felled by a sex scandal and got voted out of office or had to resign. But that's simply substituting the President for the Presidency. If that happened, the Presidency would go on just fine. It just wouldn't be very good for Bill Clinton and his supporters. But they aren't the same thing as the Presidency.
 

Nope, Mark. The standard for discovery is simply whether the testimony is REASONABLY LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE. (I believe this is FRCP 26.)

This is much too narrow a view of the situation. Clinton's testimony was irrelevant to the reason for dismissal of the suit, and would have been so regardless of which way he originally testified.

It's true that his testimony was compelled under the discovery standard, but that helps my point and hurts yours. The discovery standard, as all lawyers know but many non-lawyers don't, is MUCH broader than the standard for admissibility at trial. Thus, discovery can reach facts which will never be admitted at trial, and it's partly this which makes the process so intrusive (not just to presidents, to everyone). The discovery process subjects a sitting president to the broad standard and uses the power of the judiciary to compel an answer. That's real interference by the judiciary in the conduct of the executive.

Again, I think reasonable people can nevertheless accept this as part of the price we pay. But I don't have to agree with that and I don't. To me, the Clinton case was one of judicial over-reaching.

Has it occurred to you that the President's testimony might also be needed in a case involving other parties? And before you say "toll that case too", how about a criminal case where the defendant has a speedy trial right?

I think one of my comments above agrees that presidential testimony can be compelled in a criminal case. If I haven't said it before, I do agree with that. Alternatively, of course, the President has the power to drop the prosecution (assuming it's a federal one).

There's no way to prevent presidential exposure to potential perjury prosecutions (except the most obvious solution, which is to tell the President not to lie at depositions!). There's also no way to prevent that the President might have to disclose details of a politically damaging affair.

I don't have any real interest in either of these things one way or the other. What I do have an interest in is barring a president's political enemies from using phony civil claims to embarrass him/her, and co-opting the judiciary to do so.

If we really want to get details from our candidates/presidents, let's force each of them to undergo a deposition by their opponents. In public, all answers recorded. Televise it. We can have McCain ask Obama about Ayers, Obama ask McCain about the Keating 5 and other McCain idiocies, and everybody ask Palin about Troopergate. At least this way there's no partisan advantage to it. Frankly, the whole experience would be less painful than another "debate" hosted by Tom Brokaw or Gwen Ifill.
 

People have sex with each other by mutual agreement, not by right

But they have a right against the government telling them they can't, except, as you say, in cases of prostitution or statutory rape. The government may not, for example, ban sodomy, nor could it ban extramarital or premarital sex. Now, even though some folks are so socially incompetent or what have you that they may never get to exercise that right, it doesn't follow that they don't have a right. Imagine a world, if you will, an early 19th century world before means of amplification, where the vast majority of people, by way of some defect, could only speak, in a whisper. The few who could speak more loudly would win all the elections; some might say that this state of affairs was most unjust. But a law that sought to correct the problem by ordering the few who could speak at normal volume to whisper when campaigning for office would certainly violate the First Amendment.
 

Dialn: The solution to this is to empower judges, as they already are empowered, to take the Presidency into consideration when determining whether suits go forward and in what way, and to dismiss meritless suits

Sounds good to me, except in the Jones case the judge made the mistake of not dismissing the case prior to depositions.

Maybe she has the same view of what constitutes crippling the President as you do. If so, I disagree. Popularity is critical to the President's ability to carry out his duties. Yes, unpopular Presidents are part of the system. But not when the unpopularity comes as a result of truthtelling in a deposition given in a meritless suit.
 

This is much too narrow a view of the situation. Clinton's testimony was irrelevant to the reason for dismissal of the suit, and would have been so regardless of which way he originally testified.

Mark, as a practicing lawyer, I can confidently tell you that you are far, far off here. 95 percent of what you get in discovery you never introduce at trial. The rules committee made a conscious choice that discovery would be broader and that parties could cast a broad net. And the law is quite clear that witnesses at a deposition don't have the right to decide what questions they will or will not answer truthfully. The judge ruled that Clinton had to answer the question. If he disagreed with that ruling, his counsel had the right to suspend the deposition and seek an interlocutory appeal. Instead, he instructed Clinton to answer the question.

That's the way it works in discovery. We don't go back after the fact and say "well, it turned out that it wasn't relevant". If the judge says it's discoverable, then you are required to tell the truth. If I signed an interrogatory response on behalf of a client that I knew to be false, justifying myself on the ground that interrogatory wouldn't be admissible at trial anyway, I would be eligible for disbarment.

Thus, discovery can reach facts which will never be admitted at trial, and it's partly this which makes the process so intrusive (not just to presidents, to everyone). The discovery process subjects a sitting president to the broad standard and uses the power of the judiciary to compel an answer. That's real interference by the judiciary in the conduct of the executive.

And if Clinton had wanted to make the argument that the special nature of the Presidency makes it too intrusive to ask the President about whether he had an affair, he could have made it. And he would have lost that argument 9-0 at the Supreme Court, because guess what, we don't stay cases because the President might be embarrassed about his testimony.

I think one of my comments above agrees that presidential testimony can be compelled in a criminal case. If I haven't said it before, I do agree with that. Alternatively, of course, the President has the power to drop the prosecution (assuming it's a federal one).

But that concedes the ball game. Let's say Gary Condit got elected President before admitting his affair with Chandra Levy, and then he had to give testimony in the Chandra Levy murder case in order to identify Ms. Levy's whereabouts at crucial times. Now, he doesn't want to admit that he had an affair with Levy.

Once you concede that Presidents WILL have to sometimes give depositions, and that such depositions CAN potentially force the President to admit a sexual affair, you are stuck. Because that situation is not distinguishable from the Clinton v. Jones situation.

Again, what you aren't telling me is WHAT THE HECK WAS SO HARD ABOUT CLINTON JUST ADMITTING HIS AFFAIR WITH LEWINSKY????? How is the Republic going to fall if he does that? What horrible thing will happen?

The answer: nothing. The only POSSIBLE argument you have is that then he doesn't get reelected. Again, however, that's not crippling the PRESIDENCY. That's crippling BILL CLINTON. And the Constitution is not a charter to ensure that Bill Clinton can get his strange.

What I do have an interest in is barring a president's political enemies from using phony civil claims to embarrass him/her, and co-opting the judiciary to do so.

If the claim is phony, it will get dismissed. The issue here is denying or delaying access to the courts (for 8 years!) to those with REAL claims against the President.
 

Sounds good to me, except in the Jones case the judge made the mistake of not dismissing the case prior to depositions.

This was a close call. On the one hand, it was a stretch to make a federal civil rights claim out of a case of sexual harassment, as Jones did. On that level, I think a 12(b)(6) motion could have been granted.

On the other hand, I continue to hold that a deposition of a sitting President is no big deal. Clinton just needed to say he had sex with Monica Lewinsky. There's no LEGITIMATE reason he had to lie about it.
 

Mark, as a practicing lawyer, I can confidently tell you that you are far, far off here. 95 percent of what you get in discovery you never introduce at trial. The rules committee made a conscious choice that discovery would be broader and that parties could cast a broad net. And the law is quite clear that witnesses at a deposition don't have the right to decide what questions they will or will not answer truthfully. The judge ruled that Clinton had to answer the question. If he disagreed with that ruling, his counsel had the right to suspend the deposition and seek an interlocutory appeal. Instead, he instructed Clinton to answer the question.

That's the way it works in discovery. We don't go back after the fact and say "well, it turned out that it wasn't relevant". If the judge says it's discoverable, then you are required to tell the truth. If I signed an interrogatory response on behalf of a client that I knew to be false, justifying myself on the ground that interrogatory wouldn't be admissible at trial anyway, I would be eligible for disbarment.


I'm not sure if the fact that I've been practicing much longer than you means that I'm better at it or that I just need more practice. :)

You're making my point for me. It's precisely the fact that discovery is so broad which makes the litigation of even meritless suits so intrusive and so subject to abuse.

You seem to think that it would have been a simple matter if Clinton had just testified differently. But that's the thing: he couldn't have "solved" anything because his testimony never did matter regardless which way it went. That was the very abuse.

But that concedes the ball game. Let's say Gary Condit got elected President before admitting his affair with Chandra Levy, and then he had to give testimony in the Chandra Levy murder case in order to identify Ms. Levy's whereabouts at crucial times. Now, he doesn't want to admit that he had an affair with Levy.

Once you concede that Presidents WILL have to sometimes give depositions, and that such depositions CAN potentially force the President to admit a sexual affair, you are stuck. Because that situation is not distinguishable from the Clinton v. Jones situation.


My position has nothing to do with whether presidents admit affairs or not. I couldn't care less. My position is that our constitutional structure involves a balancing of the respective roles of the three branches. Allowing a private individual to use the judiciary to pursue the president, in my judgment, upsets that balance.

The fact that I draw a different balance with respect to crime is no argument against my position; that's just a different weight in the scale.

If the claim is phony, it will get dismissed. The issue here is denying or delaying access to the courts (for 8 years!) to those with REAL claims against the President.

I agree it will be dismissed in the long run. But just to give an example from my practice, I have a case (actually, cases) right now in which my clients were sued in federal court in an utterly meritless case. I had it dismissed in 2006 and upheld on appeal. The plaintiff then filed a separate suit in state court and a new one in federal court, both of which I had to get dismissed and the latter of which is even now still on appeal. The process has cost my clients a good deal of money they don't really have despite the fact that there was no liability at all.

Now, I understand that this is one of the prices we pay for a legal system. But I think we need to acknowledge that meritless cases (like the Jones case) bear a price. The larger social question is whether we, the society, should pay that price by having the job of president interrupted, or whether it's better to put a single individual's suit on hold for 4-8 years. I opt for the latter.
 

Tray,

You guys keep twisting yourselves into knots with analogies when the facts will do. There are lots of other restrictions that apply to sexual relations, for example:

You can't admit to having homosexual relations and serve in the military. Adultery, oh by the way, is a CRIME under the UCMJ (Title 10 USC).

Knowingly having unprotected sex with someone when you are infected with HIV might be a crime or a tort. Polygamy is banned in the US.

And what do all these restrictions on the right of people to engage in their preferred sexual practices entail?

Just this: the notion that there is some rational basis for thinking there is a compelling public interest that warrants the restriction. In some of the examples I've mentioned, the pretext is very thin, like the prostitution laws or don't-ask don't-tell. In others, it's obvious, like having sex with someone under the age of consent (though even that gets a little gray around the edges).

The bottom line here is that there is no reason to suppose that anything in the Constitution requires us to allow rich people to manipulate public instutions to gain an unfair political advantage any more than it requires us to allow rich people to corner the market on gold or pork-bellies, etc -- and it has absolutely nothing to do with free speech.
 

The larger social question is whether we, the society, should pay that price by having the job of president interrupted, or whether it's better to put a single individual's suit on hold for 4-8 years. I opt for the latter.

If there were lots of cases and the Presidency was seriously taxed, I would agree with you (and I bet the Supreme Court would overturn Clinton v. Jones).

But we have only 1 case, and in that case, the Presidency was not taxed at all-- he completed his deposition and went back to work, and the case was ultimately disposed of on summary judgment. The only harm that was caused was a result of the President's lying, not the existence of the suit.
 

Let us be clear: It is totally plausible that a person could choose to take it on the chin for perjury rather than tell a truth which might embarrass them more than the perjury conviction. That's true for you and for me and for all the rest. It's a cost analysis issue. Perjuring oneself to protect "the honor of a lady" would once upon a time have been hailed as chivalrous.

Recall, please, that the Jones suit didn't start with Monica, but rather with allegations of sexual harassment by Paula. And the entire political landscape was disrupted by this, arguably, frivolous and politically motivated suit. But for Jones' suit there was no cause for Clinton to perjure himself; Jones' suit was the sine qua non of the lie. Do you really not see that?

This doesn't even begin to touch the baselessness of your unspoken assumption that if Clinton had just said, "Yeah, she blew me" the whole thing would have wrapped up somehow faster. That strikes me as a terribly naive, or disingenuous, assumption given the political landscape of the time.
 

Recall, please, that the Jones suit didn't start with Monica, but rather with allegations of sexual harassment by Paula. And the entire political landscape was disrupted by this, arguably, frivolous and politically motivated suit. But for Jones' suit there was no cause for Clinton to perjure himself; Jones' suit was the sine qua non of the lie. Do you really not see that?

But the "entire political landscape" is not the same as the Presidency. No doubt that the suit had political implications. But we don't change the rules of justice simply because letting a suit proceed might affect the election returns.

Bear in mind, if a suit were really "frivolous", it would be subject to a 12(b)(6) motion (as well as Rule 11 sanctions). Again, if it were so easy to tie the President up with lawsuits based on pre-Presidency conduct, where's the flood of lawsuits? We've had one, and it didn't disrupt the Presidency one bit. Only the lie did that.

Yes, but you say, the lie occurred because the lawsuit did. True enough, but why does that matter? If there hadn't been a communist revolution in Vietnam, LBJ wouldn't have lied to pass the Gulf of Tonkin resolution. But there was, and he did.

What you guys are missing is that CLINTON HAD AN OBLIGATION TO TELL THE TRUTH IN HIS DEPOSITION. Even if you think the deposition was wrongly ordered in a suit that was wrongly filed. He doesn't get to make that call. Judge Wright gets to make that call, and she did.

Again, if the suit actually affected the PRESIDENCY, you would have an argument. But it didn't. It affected the President. But Bill Clinton didn't have an entitlement that no judicial proceeding occur that might possibly force him to admit an affair. No President gets that entitlement.

This doesn't even begin to touch the baselessness of your unspoken assumption that if Clinton had just said, "Yeah, she blew me" the whole thing would have wrapped up somehow faster. That strikes me as a terribly naive, or disingenuous, assumption given the political landscape of the time.

Here's what I mean. Again, it's the difference between the President and the Presidency.

If he said "yeah, she blew me", the deposition ends, he moves for summary judgment, and the case gets dismissed. He can go back to being President.

Now, of course, his popularity might tank. He might lose the election or be forced to resign. The Republicans might gain seats in Congress. But none of those things are cognizable by the judiciary!

What do you guys really want? Do you really want judges to treat the President's POLL RATINGS as a compelling interest? Do you want judges to ensure that the President gets reelected?

Your position is Bush v. Gore on steroids. Suddenly, the job of judges becomes to ensure that the elections come out a certain way. Because, if the President becomes less popular or is disgraced, it disrupts the Presidency! Hey, why not apply this to other parts of the law? I can imagine that if we skewed the case results just right, we could keep every President at over 70 percent popularity. And then the Presidency would be really strong!

No, sorry. The judiciary can't be in the business of ensuring that the President doesn't take a political hit in a sex scandal. That isn't their job; it has nothing to do with protecting the Presidency.

I should add one last thing, in response to Robert and not Mark. I don't believe for a minute that men don't admit affairs to "protect their wives". That's self-deluded rationalizing BS. They don't admit affairs because they don't want the wife to dump them. It's purely selfish, and chivalry has NOTHING to do with it.

In any event, if Bill Clinton cared more about the country than he did about his own selfish interests, he would have told the truth at that deposition.
 

Again, if it were so easy to tie the President up with lawsuits based on pre-Presidency conduct, where's the flood of lawsuits? We've had one, and it didn't disrupt the Presidency one bit. Only the lie did that.

Minor point first. Clinton's testimony as given did disrupt his presidency. The thing is, it would have also disrupted his presidency had he said, "yeah, she blew me". Either way, the disruption was there.

Major point second. It's fair enough to say there's been no flood of lawsuits. I suggest that's at least partly because prior to 1994, nobody considered using litigation as a political attack against a sitting president. I'm making a factual prediction that we'll see more of it; it may take some time, but the precedent is there and it will be used.

What do you guys really want? Do you really want judges to treat the President's POLL RATINGS as a compelling interest? Do you want judges to ensure that the President gets reelected?

Absolutely not; if there are two commenters here who've been more adamant about Bush's abuses of power than Robert and me, I don't know who they are.* What I don't want is for the judiciary to be used as a weapon by private parties against public officials. In the bad old days, kings used the judiciary as a method for murdering their opponents. That was a lousy system and we got rid of it. I don't want judiciary used as a weapon either way.

*Lots of others, including you, have been equally adamant.

**I realized in thinking about it that my joke above about my need to practice law may have come across as snarky to you. I didn't mean it that way.
 

Minor point first. Clinton's testimony as given did disrupt his presidency. The thing is, it would have also disrupted his presidency had he said, "yeah, she blew me". Either way, the disruption was there.

The only way this disruption you are talking about is cognizable is if affecting the President's political popularity is a form of disruption. And therefore, despite that you swear that you don't want judges considering the President's political popularity as a state interest, the necessary implication of your position is that the judiciary SHOULD consider it.

In my mind, the only cognizable harms to the Presidency are things such as whether the suits take up too much time, or the President is distracted by judical process from doing his job, or similar issues.

If the President lies and the lie disrupts the Presidency, that's the result of the lie, not the suit. And if the President tells the truth and the truth causes his popularity to decrease or his political enemies to gain ground, that's a factor that judges must never consider.
 

Dilan:

Bear in mind, if a suit were really "frivolous", it would be subject to a 12(b)(6) motion (as well as Rule 11 sanctions)....

It was dismissed on an emnbarrassing SJ motion (as I had predicted, having read the briefs, even when eminent
"legal experts" proclaimed shock at Wright's dismissal). And that after Wright had given the inept plaintiff attorneys leave to amend their original complaint to even survive the first 12(b)(6) motion and get in the front door. But they got their discovery, promptly leaked it (despite Wright's gag order), and did what they intended to do.

Again, if it were so easy to tie the President up with lawsuits based on pre-Presidency conduct, where's the flood of lawsuits?

It is easy. See, e.g., the Jones case....

We've had one, and it didn't disrupt the Presidency one bit....

Nonsense.

... Only the lie did that.

Huh? The alleged "lie" was something that could have been handled by Wright (and in fact was), but that wasn't the point at all. The point was to embarrass and hamstring the presidency. At that, they succeeded wonderfully.

Yes, but you say, the lie occurred because the lawsuit did. True enough, but why does that matter? ...

Because the question should never have been allowed. It was impermissible under any reasonable reading of the FRE. The judge, to her everlasting shame, was sceptical of the relevance and admissibility of the line of questioning, but demurred on a ruling on the objections of Bennett, as the plaintiff's lawyers said they were going to show how it was admissible (they never did), and Wright wanted to get the deposition down, rather than having to go back later and do it. She thought the gag order and a sealed deposition -- should she (in the end) find the entire line irrelevant -- enough to keep it under wraps. She was wrong, even though she excluded all such inquiry from the case. It was the leak that caus4ed the damage ... and the damage was entirely political.

If there hadn't been a communist revolution in Vietnam, LBJ wouldn't have lied to pass the Gulf of Tonkin resolution. But there was, and he did.

What does that have to do with the price of tea in Sri Lanka?

What you guys are missing is that CLINTON HAD AN OBLIGATION TO TELL THE TRUTH IN HIS DEPOSITION.

No. This is simply not true. I said at the time (and I maintain still) that he could and should have told her lawyers that the moon was made of green cheese, and that's the whole truth. Wright was wrong to withhold a ruling on the line of questioning absent a proffer of what it was that made such permissible.

Even if you think the deposition was wrongly ordered in a suit that was wrongly filed. He doesn't get to make that call.

He objected (or Bennett did). He can do no more.

... Judge Wright gets to make that call, and she did.

And she was played for a sucker by the plaintiff's attorneys. What she didn't know is that the ends they were seeking were extralegal.

Again, if the suit actually affected the PRESIDENCY, you would have an argument. But it didn't. It affected the President. But Bill Clinton didn't have an entitlement that no judicial proceeding occur that might possibly force him to admit an affair....

Yes, he did. Unless they had a legal reason to ask for such, they shouldn't have been allowed to ask.

FWIW, here's the conservative USN&WR on the strangeness, even before Lewinsky fell into Starr's lap:


"In the latest travesty, as revealed by the Washington Post,
Starr used prosecutors and FBI agents to interrogate Arkansas
state troopers about women with whom Bill Clinton allegedly had
affairs prior to his presidency. Starr's deputy argues that
they had a duty to find out whether Clinton might have confided
some incriminating statements to these women. Fine--until you
consider the questions Starr's agents actually asked. They
wanted to know whether one woman had borne a child who
resembled Clinton and whether any of the officers had witnessed
Clinton having sex with local women."

(U.S. News and World Report, July 21, 1997)

No President gets that entitlement.

You misspelled "treatment".

Here's what I mean. Again, it's the difference between the President and the Presidency.

If he said "yeah, she blew me", the deposition ends, he moves for summary judgment, and the case gets dismissed. He can go back to being President.


You neglect the tiny fact that the purpose here wasn't to win the lawsuit.

Now, of course, his popularity might tank. He might lose the election or be forced to resign. The Republicans might gain seats in Congress. But none of those things are cognizable by the judiciary!

Yet the Arkansas Project hijacked the judiciary for such ends. That's a blot on the judiciary ... but also a caution on even allowing such suits.

What do you guys really want? Do you really want judges to treat the President's POLL RATINGS as a compelling interest? Do you want judges to ensure that the President gets reelected?

We don't want the judiciary turned into a cudgel by the president's opponents. Let them make their own political case without using forced depositions and the massive legal weight and manpower of the FBI in pursuing witch-hunts.

In any event, if Bill Clinton cared more about the country than he did about his own selfish interests, he would have told the truth at that deposition.

If he cared about the integriyty of the U.S., he would have told the Jones lawyers to go blow themselves. Which is what I counseled at the time. He might have paid a political price for doing so ... but maybe not. Less of a price than he paid for what actually happened. And in doing so, he would have struck a blow against abusive depositions and nuisance lawsuits.

Cheers,
 

Brett:

I think it never occurred to them that the kind of person who'd be sued in a civil action would end up as President.

Nonsense and kibosh. Burr and Hamilton came pretty close. And there's others there of less than stellar personal virtue.

Cheers,
 

If he cared about the integriyty of the U.S., he would have told the Jones lawyers to go blow themselves. Which is what I counseled at the time. He might have paid a political price for doing so ... but maybe not. Less of a price than he paid for what actually happened. And in doing so, he would have struck a blow against abusive depositions and nuisance lawsuits.

Arne, the way you tell the lawyers to go blow themselves is to take an interlocutory appeal of Wright's relevance ruling.

The problem is that Clinton didn't have the guts to do it because it would have looked like he was having an affair (which he was).

By the way, one other thing. Lose the scare quotes around "lie"-- he did-- and don't claim that a witness has a right to lie at a deposition based on his judgment of the nonmateriality of the statement-- he doesn't. (A point that Judge Wright and Clinton's state bar underscored with their later rulings.)

It is true that if you can show nonmateriality (which, by the way, is not the same thing as the case getting knocked out on summary judgment), you can beat a perjury prosecution, but lying about nonmaterial points still violates the oath, is still illegal, and is still subject to sanctions. (And, of course, it was an impeachable offense as well.)

The fact is, we can't have witnesses determining issues of legal materiality and determining when they have the right to lie. If the District Court tells you to tell the truth, you either (a) tell the truth or (b) take an interlocutory appeal. Clinton chose option (c) and there is none.
 

Dilan:

And the law is quite clear that witnesses at a deposition don't have the right to decide what questions they will or will not answer truthfully.

You're wrong. See if you can figure out where you went wrong.

Cheers,
 

Dilan:

If the judge says it's discoverable, then you are required to tell the truth. If I signed an interrogatory response on behalf of a client that I knew to be false, justifying myself on the ground that interrogatory wouldn't be admissible at trial anyway, I would be eligible for disbarment.

That's a different matter. In fact, lawyers have a duty to be honest at all times, whether under oath or not, and no matter what the subject, or be subject to disciplinary sanctions (see, e.g., MRPC Rule 8.4(c)). But that hardly applies to the obligations of the deponents themselves.

Cheers,
 

Dilan:

[Mark Field]: Sounds good to me, except in the Jones case the judge made the mistake of not dismissing the case prior to depositions.

[Dilan]: This was a close call. On the one hand, it was a stretch to make a federal civil rights claim out of a case of sexual harassment, as Jones did. On that level, I think a 12(b)(6) motion could have been granted.


She should have. The original 12(c) motion was granted and a number of complaints dismissed. Wright allowed a couple of claims, and granted leave to amend, because the original complaint was legally asinine. Why she granted leave to amend, I don't know, but Jones had gotten marginally better lawyers, so maybe she thought they deserved a crack at filing a better complaint.

The SJ motion was granted basically on the pleadings (no evidence from the discovery were needed for this result), so the 12(c) motion should probably have been granted in its entirety to begin with.

Cheers,
 

You're wrong. See if you can figure out where you went wrong.

Arne, I am not wrong.

1. The oath: it does not contain a materiality requirement. The witness' legal obligation is to tell "the truth, the whole truth, and nothing but the truth".

2. There are procedures to prevent improper questions. A witness and their counsel can suspend a deposition at any point and move for a protective order. Further, the witness can seek a writ of mandamus or interlocutory appeal if the court rules against him or her.

Here's an example-- let's see if you know the law. You have a client who is asked about a matter which you believe is protected by the lawyer-client privilege. However, your client asks for a break and at the break tells you that for some reason he or she does not want to assert the privilege. Rather, your client says, he or she wants to lie in his or her answer to the question because the client believes the question will not be material anyway.

Now, do you tell the client (1) yes you may lie, or (2) no, you may not lie-- your only two choices are to answer truthfully or assert the privilege.

Let me give you one hint-- if your answer is (1), that advice could subject you to discipline here in California and, I assume, in DC and Arkansas as well.
 

BTW, my vote is for Dubya v. Gore, hands down.

It has the 'merit' of having soooo many reasons that it was execrable:

1). The majority lied in their opinion.

2). They said it was good for Dubya only.

3). The conservatives ignored their own legal precedent on standing to allow just Dubya (but no one else) to pursue a case where no evidence of actual discrimination was shown.

4). Their "remedy" didn't fix the problem they said needed fixing.

5). The political machinations involved were obvious to everyone.

6). They didn't need to decide the case.

7). Dubya had no standing to bring the case (he wasn't a Florida voter).

8). The conservatives on the Supreme Court sucker-punched Florida with their earlier ruling, pretending to be concerned with the 3 USC 5 and Article II issues, but rejecting this to pick up the ignored (and bogus) "equal protection" argument the second time around.

As an exercise of raw politics in action, no better (and more glaring) example is possible. And as Breyer said, the ruling cast a pall on the integrity of the court system, and public confidence in the courts.

Cheers,
 

The conservatives on the Supreme Court sucker-punched Florida with their earlier ruling, pretending to be concerned with the 3 USC 5 and Article II issues, but rejecting this to pick up the ignored (and bogus) "equal protection" argument the second time around.

While that is true in effect, I actually don't think that's what the conservatives were trying to do (though what they did do is equally bad).

The first decision was 9-0. (By the way, I thought it was terrible. But then, I think the original sin in this area is MacPherson v. Blacker.) My bet is that the conservatives assumed they would have at least five votes to stop any recount on the ground that it would violate MacPherson at the time of the first decision. But when it actually came down to it, they only had 3. So they instead went with an equal protection rationale that they didn't believe in, because, of course, the only real purpose of the case was to ensure Bush got elected.

You know what the cruelest irony of all is? If they had done the right thing and stayed out of it, Bush would have been elected anyway and with at least somewhat more legitimacy-- he either would have won the recount (because Gore only requested a selective recount) or he would have gotten his electors seated by the political branches in Florida and the House.

So all the Supreme Court got for their massive screw-up of American constitutional law was the same result that would have occurred anyway, except with 51 percent of the public thinking that the Supreme Court put him in office. Nice job, guys.

This is why we have a political question doctrine.
 

The only way this disruption you are talking about is cognizable is if affecting the President's political popularity is a form of disruption. And therefore, despite that you swear that you don't want judges considering the President's political popularity as a state interest, the necessary implication of your position is that the judiciary SHOULD consider it.

This isn't really my argument. I was only making a factual correction to your earlier statement that "the lie alone" caused the disruption. That's not right.

Now, the question is, under what circumstances do we want the president's performance of his job to be disrupted? Sometimes there are good reasons -- impeachment, say, or criminal proceedings where someone's life or liberty is at stake. That's a legitimate balance, and in both cases the potential for abuse is also limited (though less so than I thought prior to the Clinton impeachment).

In a civil case, though, all that's at issue is money. A delay in getting the money may be unfortunate, but we deal with that all the time (erroneous trial court rulings, for example). Tolling actions is reasonably common on a number of grounds.

On the other side, the risk is that a single private citizen will try to use the judiciary as a means or method of political attack. That's something we want to avoid, particularly when such an attack is focused on the one branch with only a single head. Again, in my judgment, the potential for abuse far outweighs the benefit of allowing the suit to go forward.

I would feel this way regardless of the Clinton example. You keep coming back to the fact that, ultimately, it was Clinton's own behavior which got him into trouble. That's true in a limited sense. What's not true about it is that lots of mistakes people make are kept private (affairs) or minimized (drug use), and we don't force politicians to answer questions under oath about them. I'd really hate to see a day when the judiciary got used for that purpose to partisan advantage, whether that means Clinton's sex life or Bush's drug use.
 

On the other side, the risk is that a single private citizen will try to use the judiciary as a means or method of political attack. That's something we want to avoid, particularly when such an attack is focused on the one branch with only a single head. Again, in my judgment, the potential for abuse far outweighs the benefit of allowing the suit to go forward.

Again, if there's a rash of suits, I am sure Clinton v. Jones will be overturned. But so far, despite the Supreme Court's go-ahead, we haven't seen another such suit. That should suggest to you that the danger of such political attacks is less than you thought.

I would feel this way regardless of the Clinton example. You keep coming back to the fact that, ultimately, it was Clinton's own behavior which got him into trouble. That's true in a limited sense. What's not true about it is that lots of mistakes people make are kept private (affairs) or minimized (drug use), and we don't force politicians to answer questions under oath about them.

Except, you are quite willing to have them answer questions under oath about them if they are related to a criminal matter, or a matter of legitimate congressional oversight, or an impeachment matter.

If your position was that the President should never have to answer questions under oath about his or her personal life, that might be a coherent and consistent position (even though I would say it is wrong). But your position is that the President might very well have to answer such questions, just not in a civil suit filed against him or her. And that position, it seems to me, needs to be justified by some emperical evidence that in fact such suits are repeatedly disrupting the Presidency. Instead, we've had just one, and the disruption was because the President decided to lie at the deposition.

One other thing I should mention. Staying a case for 8 years is no minor thing. People die in 8 years. Memories fade. Victims have to live with no closure.

You would have to establish a very serious and compelling reason to get a judge to stay a case for 8 years in any other context. And that's because it isn't "only money"-- there's a lot of other bad things that can happen if you don't allow a plaintiff to prosecute a claim for 8 years.

And those are certain harms. Weighed against your speculation (not borne out by the reality of the post-Clinton v. Jones experience) that there are going to be a bunch of suits of this nature against the President and they will be disruptive.

At such time as we see a rash of such suits, maybe that will justify the extraordinary measure of granting 8 year stays. But there's no way you stay cases for 8 years based on pure speculation. It's safe to say there probably isn't a single civil case in US history that was stayed 8 years based on a totally speculative harm.
 

Again, if there's a rash of suits, I am sure Clinton v. Jones will be overturned.

I am too. I'm not sure what that says about our respective arguments here.

If your position was that the President should never have to answer questions under oath about his or her personal life, that might be a coherent and consistent position (even though I would say it is wrong). But your position is that the President might very well have to answer such questions, just not in a civil suit filed against him or her. And that position, it seems to me, needs to be justified by some emperical evidence that in fact such suits are repeatedly disrupting the Presidency.

Well, I think the Jones suit did disrupt the Clinton presidency, and not just because of his deposition testimony. I understand you disagree.

More to the point, I don't feel like waiting till the house burns down to install the sprinkler system. I'd rather have it in place beforehand.

I will say this: much of my skepticism here is driven by the increasing insanity of today's Republican extremists. They have shown repeatedly over the last 15 years (at least) that they refuse to recognize the legitimacy of any Democratic president and will do literally anything to attack him. The only thing they haven't yet tried this decade is physical assault, and even that is seeming more plausible by the day. I want an end to this crap.
 

@Dilan, one more try: Was the Jones lawsuit a sine qua non of the lie or not? Hm? For extra credit you can cite some facts establishing that a candid answer on the sex-with-Monica item would inherently have cleared matters any faster. Until then there's no real point on trying to drown us with words.
 

Dilan wrote:

And those are certain harms. Weighed against your speculation (not borne out by the reality of the post-Clinton v. Jones experience) that there are going to be a bunch of suits of this nature against the President and they will be disruptive.

Wait until there is another Democratic President.
 

Dilan, one more try: Was the Jones lawsuit a sine qua non of the lie or not? Hm? For extra credit you can cite some facts establishing that a candid answer on the sex-with-Monica item would inherently have cleared matters any faster.

Robert, it would have ended the SUIT faster.

The fact that it might have hurt Bill Clinton politically is irrelevant. Bill Clinton isn't entitled to judicial protection from revealing his sexual affairs.
 

I am too. I'm not sure what that says about our respective arguments here.

It says that the life of the law is not logic, but experience.
 

Dilan: "Robert, it would have ended the SUIT faster."

1) A bald assertion does not do service to a request for persuasive facts.

2) You completely ignore the first question...again.

"@Dilan, one more try: Was the Jones lawsuit a sine qua non of the lie or not? Hm? For extra credit you can cite some facts establishing that a candid answer on the sex-with-Monica item would inherently have cleared matters any faster. Until then there's no real point on trying to drown us with words."
 

1) A bald assertion does not do service to a request for persuasive facts.

Robert, are you simply trying to look uninformed??? The suit couldn't end until Clinton testified. Once Clinton testified, it was straightforward to get summary judgment. But not if he lies and the plaintiff has to be given the opportunity to establish the lie.

Clinton testifies truthfully, then moves for summary judgment, and Wright grants it. Case over. (Indeed, if he hadn't have made his stay argument, it could have been over even before he even started his affair with Monica.)

Robert, LEGALLY, Clinton ends this much faster if he doesn't try to prevent the deposition and doesn't lie when it occurs.

POLITICALLY, the story might have been different. But the courts can't be in the business of protecting the PResident's political standing.
 

Bush v. Gore was a 7 to 2 decision that the selective recounts Gore wanted violated the Equal Protection Clause. It was a bipartisan decision despite the lefts agenda driven attempts to paint it otherwise.

This list is politically driven. How could you NOT include Roe v Wade a case which even liberal, pro-choice professors like Lawrence Tribe have said is one of the worst reasoned decisions in SCOTUS history, is beyond me.

Your politics got in the way of your reason on this one fellas.
 

Bush v. Gore was a 7 to 2 decision that the selective recounts Gore wanted violated the Equal Protection Clause.

This seriously mis-states the holding. The key question was the remedy, and on that the vote was 5-4; not bipartisan at all. Moreover, Breyer and Souter were at least sincere in their equal protection argument. The conservatives were not.

The suit couldn't end until Clinton testified. Once Clinton testified, it was straightforward to get summary judgment.

This implicitly assumes that the District Court was right when it refused to grant the 12(b)(6) motion. If it had granted the motion, then of course the deposition would never have taken place. It also implicitly assumes the SCOTUS was correct in allowing the suit to proceed.
 

A dishonorable mention should go to Timmons v.Twin Cities Area New Party, in which Chief Justice Rehnquist wrote: "The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system". Burdick has already been mentioned somewhere above.
 

This implicitly assumes that the District Court was right when it refused to grant the 12(b)(6) motion. If it had granted the motion, then of course the deposition would never have taken place. It also implicitly assumes the SCOTUS was correct in allowing the suit to proceed.

That's true enough, Mark. But Robert's argument assumes that if Clinton tells the truth and admits the affair, Judge Wright then doesn't grant summary judgment and the case proceeds to trial. That assumption is nonsensical. No doubt there might have been a political impact, but legally, Clinton would have been much better off just doing the deposition, telling the truth, and then filing his MSJ.
 

This list is politically driven. How could you NOT include Roe v Wade a case which even liberal, pro-choice professors like Lawrence Tribe have said is one of the worst reasoned decisions in SCOTUS history, is beyond me.

You can make an argument for Roe, but it seems to me that how bad you think Roe is depends entirely on how bad the result was.

If you think-- as many pro-choicers do-- that Roe was poorly reasoned but that autonomy and equality interests of women justify a constitutional right to an abortion, Roe may be poorly reasoned but isn't harmful in the same way Bush v. Gore was. Reasoning can be corrected later (and Casey is far better reasoned than Roe); results are harder to correct.

So whether Roe goes on a 5 worst list depends entirely on whether one is a pro-lifer and believes in patriarchal gender roles and thus favors laws to ensure that women who have sex and get pregnant are forced to carry the fetus to term. If one believes that, then of course Roe is a disaster, because it ensures that states cannot force those gender roles on women. But if one believes that states shouldn't force those gender roles on women, Roe may still be poorly reasoned and even perhaps wrongly decided, but it can't be said to be a disaster.
 

True enough, but what exactly is the difference between corporate speech and any other form of speech by a group of people?

Again, the objection to this is much like the object to Buckley-- there's a huge line-drawing problem and the alternative to Bellotti is a First Amendment that is pretty unprotective of speech in the way it actually occurs.


I think the situation is not quite that of Buckley. The dissenters' position – and Rehnquist put it most plainly – was that corporations are not simply aggregations of people into which constitutional rights magically flow by virtue of constituent individual rights. Read a corporation's charter and by-laws. Read a state corporate statute. See how corporations are run. Now tell me how it represents a mass of human will striving to act as a citizen. It has no democratic mechanisms, has no tie to any individuals, and works opaquely. So there is a lot of magical thinking in your concept.

If the baseline idea is instead that no corporation is a citizen of the state that grants it existence but is rather a creature of that state and exists to carry out lawful purposes, it has whatever rights and obligations state law grants it and such further rights as the Constitution implies. But these tie to its legitimate activities. And in this mode there is wide latitude to put on the brakes where competing interests exist, which they do as corporations get bigger.

You don't have any brake pedal if you imagine corporations to be gigantic persons. But they aren't persons except under the metaphysics of corporate capitalism as widely promoted, largely by corporations.

As for what would happen if Bellotti were overturned, consider the regime that it set aside. It allowed corporations to weigh in politically where their property and assets were at stake. This has a due process similar to the classic right of regulated utilities to a fair return on their investments. It also has a speech component since the corporation cannot otherwise see to its business aims in a democracy for its shareholders' benefit, In each case firms, however, were made to stick to their knitting. The idea that their purpose was to remake the political climate from A to Z for their collective benefit is light years away from the starting point. But that was Powell's 1971 idea. He wanted to change corporate "speech in the way it actually occurs," to borrow your phrase. And he did.

It was highly disingenuous of Powell to brush the countervailing concerns aside, but that was his plan all along. It is not the state's business to say what a person is here is on earth for. Powell and the others in the majority thought the same was true of corporations.

And so, again, here we are. But we'll be implicitly distinguishing the principle of Bellotti if the anti-lobbying laws we deserve are ever enacted.
 

"But if one believes that states shouldn't force those gender roles on women, Roe may still be poorly reasoned and even perhaps wrongly decided, but it can't be said to be a disaster."

"Reasoning" is the ONLY thing that's important.

Judges should be unconcerned with "results." In other words, sound legal reasoning produces a result that a particular Justice may or may not personally like.

Justices have sworn on oath to reason properly, not to produce certain personally approved results.

Legal scholars from both sides of the political aisle agree that the high court in Roe began with a result in mind and then crafted "reasons" that it thought would justify that result.

This is classic "legislation from the bench" and should be on any fair-minded person's list of worst Supreme Court cases ever.
 

It allowed corporations to weigh in politically where their property and assets were at stake.

It seems to me though that this gives away the game. Your concern seems to be that corporations will use their power to rig the system in favor of more corporate profits. But you also concede that is constitutionally protected. So if we overturned Bellotti, we would still have a system where corporations could throw their money around to skew the laws to their benefit.
 

"Reasoning" is the ONLY thing that's important. Judges should be unconcerned with "results."

Well, yes and no. Judges shouldn't decide cases wrongly simply to obtain a good result. But judges are also supposed to do justice. Your position seems to be that judges should never take into account whether the result would be fair, even in cases that could go either way.

But that's not our discussion here. Our discussion is what are the worst decisions, which necessarily depends not only on their wrongness but also on them having a bad effect. Roe may have been wrong but it also had an unambiguously good effect of liberating American women and making it possible for Americans to have enjoyable sex lives without being forced into pregnancy. So even if it is wrong, it isn't one of the worst decisions (unless one is opposed to women's rights and sexual freedom).
 

burnham v. superior court, 495 U.S. 604 (1990) is obviously an abomination of epic proportions. marshall made it clear that once you realize that an action against someone's property is an action against that person then it's only logical that you use the same jurisdictional standards for in rem and in personam cases. nevertheless, scalia insists there is a distinction, for reasons passing understanding
 

It seems to me though that this gives away the game. Your concern seems to be that corporations will use their power to rig the system in favor of more corporate profits. But you also concede that is constitutionally protected. So if we overturned Bellotti, we would still have a system where corporations could throw their money around to skew the laws to their benefit.

Two points. First, to give a business the right to manufacture goods at a profit if it can honestly earn one is not to give it the right to rig the system. A widget maker does not have the right to capture the government agency that sets safety and environmental standards for the manufacture and use of widgets. (Yet that is what we have.)

Second, as for overturning Bellotti, I'm not claiming it would solve anything. It's not that kind of decision. I'd compare it to rescisison of the Glass-Steagall Act. It's debated whether that act should be restored. What is clear however is that its rescission was a large step in the dismantlement of a regulatory regime that facilitated financial and riesk-taking activities whose consequences may have brought us to the brink of ruin. (I don't want to debate this, just use it to illustrate a point.)

It is the same with Bellotti. It, like Buckley, stands for the proposition that moneyed interests should be free to weigh in, invoking constitutional rights to do so. That genie is now out of the bottle, and we won't put it back by overruling a single precedent. That is not my point. What I would say is that if corporate power was ever gotten under social control, we would be looking at Bellotti on the path back and ask, "What were they thinking?" and the answer would be something like the one I gave. It might be that under the reformed regime corporations were controlled in other ways -- that is the point of the Glass-Steagall example -- but we would still look at it and ask the question, seeing what we had just reformed.

I would leave it at that. I hope that is clear enough.
 

burnham v. superior court, 495 U.S. 604 (1990) is obviously an abomination of epic proportions. marshall made it clear that once you realize that an action against someone's property is an action against that person then it's only logical that you use the same jurisdictional standards for in rem and in personam cases. nevertheless, scalia insists there is a distinction, for reasons passing understanding

The problem with naming Burnham is that whether by presence or by minimum contacts, there was clearly personal jurisdiction. And maintaining a physical presence = jurisdiction rule doesn't do a lot of harm, unless Grace v. MacArthur ever recurs.
 

What I would say is that if corporate power was ever gotten under social control, we would be looking at Bellotti on the path back and ask, "What were they thinking?" and the answer would be something like the one I gave.

Leaving aside whether it was rightly decided, I don't think this is right. Corporations are powerful political actors for two reasons: (1) they persuade people; and (2) they buy influence. Overturning Belotti doesn't stop either of these things from happening. Overturning Buckley may make it slightly easier to combat (2) (although experience shows that campaign finance is VERY difficult to effectively regulate, as money always finds a way into the process.

The point is, the value of prohibiting corporations and wealthy individuals from speaking, even if this is permissible under the First Amendment, is quite limited, because it isn't very effective at stopping the selling of influence.

I would suggest that if you really want to get at the problem, you would leave Belotti and Buckley intact and create alternate streams of money (e.g., public financing), which are perfectly constitutional. By outbribing the bribers, you raise the cost of influence, which makes it more difficult. That strategy has the virtue of actually standing a chance of working, which is more than one can say about overturning the two Supreme Court cases in this area that you dislike so much.
 

Dilan,

We're closer than your last comment would suggest. Let met speak around the apparent gaps in hopes of convincing you they are more apparent than real.

First, I wouldn't leave aside the question whether the case was wrongly decided. That was my essential point, as I now see, thanks to this helpful discussion, but that said, my point was more than historical, and it ties to the very reasons you give to account for corporate power. The decision broke ranks with a longstanding way of confining the role corporations exercise in our political culture, a way that sanctioned corporations but only as parties to a particular social contract. The case broke ranks, moreover, as part of a movement to unleash their powers of persuasion and their ability to throw money around. It was a movement that transformed the terms of that contract.

I think it would help you to see this movement spelled out in the Powell memo. A google search will turn it up in no time, and it's short and to the point. It is interesting reading in any case.

Second, to repeat, and to agree with you once again, to say Bellotti was a bad decision is not to say it should be overruled. I would concur that there are probably more effective methods for curbing corporate influence given where we are, simply because these methods are on people's mind. That was the point of my Glass-Steagall analogy: a return from a bad way of operating does not necessarily undo each and every step along the path to ruin. Invariably the reformist finds circumstances so altered as to make it pointless to undo them all, to simply roll back the clock. I don't know whether undoing Glass-Steagall is closer to returning to the gold standard than to doing what is now underway to rectify our financial mess, but as I hope is obvious I'm not for a return to the gold standard. (You are evidently trying to understand me, not simply wrangle, so I am sorry I wasn't as clear as I should have been. I'm thinking this out here.)

In short, I'm all for your suggestion about using public funding to outdo corporate influence. And, to reinvoke the Glass-Steagall context, I've been busy at Paul Krugman's blog hammering away at Hank Paulson, first for resisting what most economists knew from the outset was the right thing to do, namely infuse equity into the banks, and secondly for insisting (as he now is) that the equity be nonvoting. Voting power is not only fair consideration for public funding in a social contract with the financial sector that is now being hammered out. It is a way for the public to weigh in during the transition. In every respect that matters here, it is on all fours with publicly financed elections.

Third, all of that said, I do think the base line from which Bellotti departed was not a bad one, that it is worth reflecting on, and that the case is worth overruling in one's head if not on paper. Often you find what best to do by finding where things went awry. And, to close the loop again, some are now explaining where our financial system is by spelling out what happened when we went off the gold standard. They do this without in any way suggesting that we can or should return to it. Nor are they doing this merely for curiosity's sake. Just because you turn the page, that doesn't mean you should glue all the prior ones together. That was the spirit in which I brought up Bellotti.
 

I think you did a good job of summing up our disagreement, so I will leave it at that, but with respect to this comment:

And, to close the loop again, some are now explaining where our financial system is by spelling out what happened when we went off the gold standard. They do this without in any way suggesting that we can or should return to it.

This is decidedly not my experience.

My experience is that most people who say it all went to hell when we went off the gold standard (a position which, by the way, is not really borne out by the historical evidence and certainly not by mainstream economic theory), it is because they would like to see serious changes in American monetary policy that would, in fact, approximate a return of the gold standard (either by stripping the Fed of the power to engage in countercyclical monetary policy or by abolishing fiat money and explicitly tying the currency to one or more commodities).

It's an aside, but one I can't resist commenting on, because the gold standard is the creationism of economics.
 

two of the worst "Supreme Court Decisions of the Past Fifty Years" surely must include the confirmations of roberts and alito by the senate, but that's just me
 

Well, I only said some, not most, and the writers I had in mind were more mechanical, not your "Zuruck zu Breton Woods" types.

But I agree it's time we left differences where they are, such as they are.

It was good chatting.
 

I think it never occurred to them that the President might be sued in a civil action. They had no experience with that sort of thing.

The Framers based the Constitution in significant part on their understanding of the Roman Republican constitution. If I recall rightly, Roman magistrates including the consuls were subject to civil suits while holding office. If that's the case, then the absence of any explicit provision in the US Constitution prohibiting suits against a sitting president is very good evidence that the Framers wanted to permit civil suits.
 

These cases should be reviewed within the perspective of the origin of the Supreme Court and McCullough v Maryland setting out the powers of the Supreme Court to determine whether overreaching has occurred. The decision is not as important as whether the Supreme Court has jurisdiction over the case as defined by 200 years of law that cannot be simply wiped away by the desire to have a final arbeiter that may destroy the checks and balances of the U.S. because there is now a final arbeiter. To use the Supreme Court in that capacity is to yield to the prinicple that there is a feudal monarch/council (like a king or the Mormon Council) that has the right to determine how or how well a population of citizens is entitled to live, and under what rules. Democracy has never relied upon the Supreme Court to do that and indeed, the Supreme Court has refused to position itself to do that in the past....but all that seems to be changing with the advent of cases they've chosen to indulge (perhaps with political pressure) like the above, and cases like Kelo, Citizens United, and now the Health Care bill on 2/28/2012. When the Supreme Court allows itself to be used as pawn for politics, it can no longer be the esteemed body fulfilling the role it carved out for itself upon its origination, and one that is has ferociously protected for itself. In letting down its standards, in that regard, and perhaps in allowing law itself and its interpretation to become lax, it has undermined the purpose of law, as well as its legitimacy within the American government. Who would have thought that Chief Justice Roberts would have allowed the Court to take on that role and still maintain its integrity. Power comes by esteem, not by title, and the Court has chosen to pursue its title rather than its foundations in logic, and Constitutional authority. Penalties as taxes is as poorly contrived an interpretative solution as it could possibly be - since it now confuses what is tax, and what is penalty that may come to confuse many a court throughout the land in deliberation of that issue alone, regardless of why it was chosen to become the fulcrum upon which the case was laid. Shame on John Roberts!
 

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