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Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

Judging Crimes took a long hiatus for some of the reasons explained here.

Entries beginning with Book 'em! are book reviews and commentaries. No attention is paid to the imperatives of book marketing. As Calvin Trillin once pointed out, the average shelf life of a book in a bookstore falls somewhere between milk and yogurt, but in these days of long-tail online marketing that matters less to everyone, and I don't see why it should matter at all to reviewers. Most posts will be about books that have been around long past the time when yogurt would have solidified.

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« 341. Judge Harry Pregerson Memorial Interchange | Main | 339. Intellectual dishonesty epic (pt. 3) »

340. Intellectual dishonesty epic (finale)

(Here's part 1 of this epic.)

How can you tell when a judge is up to something?  One sure giveaway is the emotive adjective or adverb.  I always tell my students that the strongest argument is the quietest: "The Supreme Court just decided this issue last week."  You don't have to raise your voice or work on anyone's emotions on those rare occasions when the law has truly boarded up all the escape routes.

When federal judge Jerome Frank went on about the "satanic" police serving the "brutalistic" regime in Coney Island, it was because he couldn't carry the day by calmly setting forth the facts and the law.  The hysteria (or, if you're feeling generous, faux-hysteria) of his language was intended to justify the result he reached. 

As a federal judge, he had no authority to substitute his view of the facts for those of the jury and New York state judges, but he got around that by claiming the Nuremberg defense in reverse: I was only disobeying orders.   If he had discussed the facts calmly, as the federal district judge had done (see post 338), it would have been obvious that he wasn't, after all, faced with the same moral imperative as an Auschwitz prison guard.

When Noia's case was argued (and argued) before the Supreme Court, it fell to Justice Brennan to explain why a congressional statute that said "shall not" meant "may."   (See post 339.)  To do so he reached deep into his bag o' modifiers:

Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus.   Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

Pretty affecting, isn't it? -- so long as you keep yourself from remembering just exactly how society "grievously wronged" Noia: it allowed him to confess to a murder, a confession that the jury found to be voluntary and which was corroborated by the confessions of his two co-conspirators, and then it allowed him to choose not to appeal his resulting conviction. 

Fay v. Noia was a 6-3 decision, with Justice Black in the majority.  Harlan, Stewart and Clark dissented.  Six years later, however, the composition of the Court had changed with Thurgood Marshall replacing Clark and Abe ("Pete Rose") Fortas replacing Goldberg.  

When he wrote the majority opinion in Kaufman v. U.S., Brennan didn't need either Goldberg or Black, and so he could dispense with the cloak of humility.  Black dissented in Kaufman.  In response, Brennan wrote that habeas corpus "contributes to the present vitality of all constitutional rights whether or not they bear on the integrity of the fact-finding process."

The second part of that sentence is very important, for reasons given below.  But look again at the first part: have you ever seen anything so exquisitely devoid of meaning?  Just think for a moment about how you'd go about "contributing" the capacity to live, grow, or develop to an inanimate object.  The real significance of that  string of words becomes apparent only when you look at what it was written in response to.  In his dissent, Black had written:

Surely, it cannot be said of Kaufman, an admitted armed robber, that he is a person whom "society has grievously wronged and for whom belated liberation is little enough compensation."

Black was quoting Brennan's own words of six years earlier.  He was even using Brennan's rhetorical trick of starting his sentence with "Surely."  Brennan's response - that bit about contributing to the vitality of an abstraction - was his way of breaking the news that he hadn't meant a single word of his heart-tugging peroration in Fay v. Noia.  Whether or not Noia had been a "victim," one "whom society has grievously wronged", was entirely beside the point.

Because, according to Brennan, the accuracy of a verdict should not distract one from the real purpose of habeas corpus, which has nothing to do with justice to any individual.  Rather, its purpose is to provide a mechanism for enforcing constitutional rights "whether or not they bear on the integrity of the fact-finding process." 

That means: whether or not a criminal is truly guilty of killing or raping or robbing another human being.  It also means: whether or not the freed criminal will interpret his liberation as permission to kill, rape and rob some more.  It means: justice, either to the individual defendant or to his past and future victims, isn't the goal of our justice system.

The goal, for Brennan, was the concentration of power in the federal judiciary.  And if you think that's going too far, remember that Justice Brennan is also the judge who wrote that a federal judge has the "inherent power" to act as prosecutor, victim and judge in the same case.  That code phrase "inherent power" means power not granted by the Constitution, of course.  (See post 32 and post 261.)  

Brennan was committed to a vision of a nation ruled by judges.  Fay v. Noia and Kaufman v. U.S. reveal that he viewed any sort of intellectual dishonesty as a justified means to that all-worthy end.

I was inspired to set out on this epic by Christopher L. Eisgruber's (see post 333) description of Brennan: "his jurisprudence depended so thoroughly on functional considerations about the judiciary's role as a defender of vulnerable minorities and individuals".  

This is yet another example of Eisgruber's uncritical adoption of every received idea about the law.  (See post 329.)  The chief distinguishing feature of Brennan's jurisprudence was his utter contempt for the most vulnerable of individuals, those whose vulnerability was objectively demonstrated, a grossly disproportionate number of whom were members of minority groups: victims of crime.

What Eisgruber is referring to is Brennan's sentimental rhetoric in such cases as Fay v. Noia.  That rhetoric was, indeed, in tune with the received ideas of law professors of the era - that was why Brennan wrote like that. 

What Eisgruber overlooks, because it's impossible to reconcile with what his professors told him and he's unable to consider the possibility that his valued mentors could be wrong, is Brennan's occasional confession, in cases such as Kaufman, that he didn't mean a word of his own gushing stuff.  He wrote like that because it worked: it successfully manipulated those same unsophisticated professors and assorted naive journalists into accepting the judiciary's authority to shrug off attempts at control by what Brennan called "the political branches" -- his perjorative term for democracy.

In 1972, Noia was arrested for conspiracy to transport stolen Post Office bonds.  He told both the arresting officer and the judge that he was the Noia, but I haven't been able to find out what happened to him after that.

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