263. Talkin to me?

No matter how many times the Supremes tell us that its just too tacky to imagine them doing anything quite so infra dig as merely deciding cases (see post 7), its very difficult to break the habit of thinking of the Court as a court.

Its easy to fall into the trap of thinking that Massachusetts v. EPA was a case about greenhouse gases, or that the recent death penalty cases out of Texas were cases about the death penalty in Texas.  In fact the Courts decisions had almost nothing to do with those particular subjects.  Almost nothing, because the subjects lent themselves to many pages of narrative prose, which in the military is called the deception strategy. 

In the run-up to the first Gulf War, the Marines spent many days practicing amphibious landings in front of CNNs cameras, while the Army, far inland, prepared its actual advance across the desert — an attack that met little resistance because Saddam Husseins troops were stationed to repel the Marines that their TV-viewing had conditioned them to believe would soon be splashing out of the waves. 

In the same way, the Supreme Court typically devotes many pages of its opinion to detailing the facts of a given case before announcing rules of universal application.  But the Courts disposition of the particular case is rarely more than an illustration of how the new rules work – and often enough its not even that but a rarely-to-be-repeated anomaly.  (See post 228.)  Judging a Supreme Court case by its facts is like judging an instruction manual by the artistic quality of its line drawings.  The critique isnt invalid, exactly, but it misses the point.

To bring the analogy a little closer to home, the facts of a case decided by the Supreme Court might be compared to the affecting anecdotes that congressmen invite witnesses to tell during televised committee hearings.   Listening to a family farmer talk about the daily struggle to make ends meet on grandpappys homestead is, admittedly, more enthralling than the details of cotton subsidies, but the two really dont have much to do with each other. 

The media, which likes stories, will report on the facts of a Supreme Court case while all but ignoring the actual decision rendered by the Court. 

The real point of the EPA case is summed up by Max Schulz at the Manhattan Institute: "It merely increases the power of the unelected judicial class to make the laws our elected representatives at all levels should be making."   Thats not an effect of the ruling.  It is the ruling. 

The issue being decided was not whether greenhouse gases should be regulated, or even whether the EPA had fulfilled its duty under the law to decide whether or not they should be regulated (which is more or less what the Court actually said – in technical legal terms, the ruling was pretty much a writ of mandamus, except that a writ of mandamus would have been improper, so they couldnt call it that).  The issue was whether the power to make that decision should be exercised by judges or by elected officials.

With respect to greenhouse gases and the Bush EPA, the effect of the ruling is less than zero, since the EPAs front office will be restaffed in just another 20 months anyway, and even the least-competent Washington bureaucracy can stretch out any rule-making process that long.

For environmentalists, the prospect of our national environmental policy being administered by Bushs EPA until January 09 is pretty alarming.  I think they need to start worrying that it will be be administered by Bushs federal judges for the next half-century. 

If you devoted time to the project of inventing the most ridiculously inefficient system of environmental regulation imaginable, I dont think you could top the federal lawsuit, which after years of litigation can, at most, determine that an executive branch agency failed, long ago, to fulfill the legislative branchs will. 

The court can attempt to remedy that failure by ordering the executive branch agency to buckle down, and then for the next 10 or 20 years the focus of the litigation will shift to the question whether the executive fulfilled the judicial branchs will.

This type of litigation quickly begins to resemble a fractal generator, patterns endlessly subdividing into smaller patterns forever.  The original point is almost instantly lost.  Just think for a moment about how many consent decrees have been entered into in the past 30-40 years.  And now think about conditions inside American prisons, the quality (and racial composition) of our public schools, our societys treatment of the seriously mentally ill, and the way in which we treat children without families. 

I dont mean to imply that the whole experience of judges managing executive branch agencies by court order has been an unbroken record of utter failure.   Doubtless the record has been broken somewhere, and certainly some failures are sub-utter.   Nonetheless, as a broad generalization, I dont think Im entirely out of line to suggest that judges are not ideal executive branch managers. 

For example, imagine if President Bush announced as his nominee to head the EPA a person who had no post-secondary education in any technical field relating to environmental science beyond biology 101, who had never supervised an organization with more than three employees, and who proposed to work at the agency only part-time. 

At least, if the President had done that, his appointee likely wouldnt go to work in the same black polyester dress every day.

In the Texas death penalty cases, the issue was similarly straightforward.  The Constitution specifically says that Congress has the authority to define the powers of federal courts.  The question before the Court was: should federal courts respect Congress when it exercises that authority?  The Courts answer was: You talkin to me?  

One can oppose the death penalty – one can agree that Texass administration of it is a  reflection of a brutally violent culture rather than a corrective to it (see post 62) – even that it deserves to be called all sorts of headline-worthy names such as "lethal injustice" – and still say, even if a bit tentatively or even plaintively: Maybe, I dunno.  Maybe the Court really should try to, you know, obey the law?

All you have to know about the real meaning of the Texas cases is summed up by Chief Justice Roberts (Ive gently de-legalesed the following):

This Court had considered similar challenges to the same instructions no fewer than five times in the years before the state habeas courts considered the challenges at issue here. …  Under the [governing statute], a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant and anoints that case as the one embodying "clearly established Federal law."

Of course the majority opinion (written by Justice Stevens) didnt really mean that the one case was clearly established federal law while the other four werent.  All the majority meant was:  You cant stop us.

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