Connick v. Thompson

Scalia’s concurring opinion deserves some kind of prize for sophistry, as it reaches a climax with his assertion that the “secret” of the case is that there was “probably no Brady violation at all” (oh, except for one prosecutor who doesn’t count because he did it knowingly, therefore training wouldn’t have helped, etc etc.). It is something of a mystery that someone so smart can be so stupid.

On the “appalling vista,” echoes of Justice Brennan indictment of the Court’s “fear of too much justice.” McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan, J., dissenting).

Thanks for writing about this. I’m glad that Lithwick brought attention to the remarkable Scalia/Alito concurrence, which actually took a more authoritarian position than the defendants themselves.

I have a theory that the source of this rightwing intellectual corruption is entirely emotional, and perhaps even quite specific. Commentators on “the Left” (such as it is) often put it down to “greed”, such as in the Right’s unalloyed support of Wall Street and so on, but I don’t think that makes a lot of sense in many individual cases. Instead what we are seeing, in so much of this, is the outcome of their hatred of abortion. Abortion is always the subtext, even when they aren’t directly speaking or writing about it, and perhaps are even momentarily unaware of its animating force. But for them, it has gotten to the point where they don’t care about other things. This could be the source of much of the sneering nihilistic rabidity of the Fox news anchors, for example. In other swords, what animates the contemporary Right is emotional, not intellectual. Any theory of the modern U.S. Right has to account for the fact that their intellectual arguments, upon inspection, often turn to dust. They surely don’t really care about Big Gov’t — indeed this Supreme Court decision would tend to enforce a more powerful and much more dangerous gov’t. Much more dangerous. This emotional subtext is likely to remain the predominating, and limiting, feature in the dynamics of U.S. politics until there is some sort of abreactive catharsis.

It’s truly difficult to understand the motivation behind this

Look at it from the fan’s point of view. You’re not interested in consistency. You’re not interested in what happens when the shoe goes on the other foot. You’re not interested in anything other than winning.

Throw away your Federalist Papers and get a big foam “We’re #1” finger. If you’re a Hillel fan, you can even stand on one leg while you wave it. That’s the whole of the Law, and the prophets.

The dead Lombardi bids fair to do from beyond the grave what a living Jeff Davis, a living V.I. Lenin, or a living Stalin, or a living Hitler could not do — destroy the republic. Oh, and Al Davis, too.

Well… I don’t think the issue in the case is really simple, or that the difference in opinions can be boiled down to Thomas and Scalia being “mean” and heartless, or unwilling to face injustice in the legal system, and Ginsburg being empathetic and courageous.

The issue is “how obvious” the need for training of govt employees to avoid conduct that violates constitutional rights must be for the municipality to be sufficiently aware of the need such that its failure-to-train employees constitutes a conscious disregard for those rights that causes the commission of the constitutional violations at hand.

This kind of claim has always been difficult to win. Usually one would have to show either that there is a history of constitutional violations resulting from a failure to train, and that the municipality’s refusal to change its training in spite of that pattern constitutes deliberate indifference – or that the need was just so obvious that the municipality didn’t need a historical pattern to know training was necessary.

The classic hypothetical used to illustrate the “so obvious a pattern is unnecessary” is the need to train police officers on the constitutional limits of the use of deadly force. Failure to do so is virtually certain to result in officers using their firearms in violation of a person’s constitutional rights.

So the bar is set quite high. It’s not just that the municipality must know that additional training would be helpful – it’s the type of situation where the municipality is handing out loaded guns to officers for use in confrontations with others. The need must be really obvious. We don’t need to wait for bodies of fleeing criminals to start showing up.

Is it just as obvious that a prosecutor would require additional formal training on disclosure requirements, when he is already made aware of the existence of the requirements, has the training and obligation to be fully educated in them, and is working in an area of the law where such disclosures will be a frequently confronted question? No, it’s not.

Should this be considered sufficiently obvious? That’s a hard question, and Ginsburg makes a very strong argument to that end. Also strong though is the countervailing consideration that if you do consider this to be sufficiently obvious – and the district court did seem to adopt a fairly broad standard – you’ve moved much closer to allowing governments to be vicariously liable for the acts of their employees, which is a result the courts in this area have long since rejected.

The relevant case is Alphonse v. Gaston.

When I got to this part of Lithwick’s article:

In the 10 years preceding Thompson’s trial, Thomas acknowledges, “Louisiana courts had overturned four convictions because of Brady violations by prosecutors in Connick’s office.” Yet somehow this doesn’t add up to a pattern of Brady violations in the office, because the evidence in those other cases wasn’t blood or crime lab evidence. Huh?

(That’s supposed to be blockquoted, and I am informed that I can use the <blockquote> tag, but it doesn’t show up blockquoted in preview—we’ll see!) I wondered why the court even bothers documenting the supposed reasoning on which it supposedly relies. This isn’t even specious. No one has the power to call Thomas on putting down arguments that would shame an imbecile, so one the one hand, sure, why not put them down? He’s not going to get a bad grade. But on the other hand the argument doesn’t matter, so why not just present the conclusion and have done? It would be less insulting and more honest.

&lt;em&gt;What about this text, which leads with ampersand-amp-semicolon-ell-tee-em-ampersand-amp-semicolon-gee-tee-semicolon? Will it show up with a literal “em” tag in front?

Sorry, ben. Comment previewing has been a problem for a while.

I really don’t understand arguments like Andrews. I understand the words written down, I just don’t understand what the writer is thinking. So we have a really high burden to demonstrate municipal liability. Okay, that’s interesting. But what are the consequences regarding a DA’s office? Well, it turns out that can mean that the attorneys can engage in the most horrendous civil rights violations pretty much continuously and even after their misconduct has been exhaustingly detailed, nothing can be done about it. Hmm. Maybe we have a problem here. Maybe if we don’t do something about it, constitutional rights of citizens will be consistently and flagrantly violated. The courts in the last half century recognized that democratic liability was not sufficient to ensure that the terms of the constitution were being obeyed by local jurisdictions. This makes sense. As a result, they developed legal rules as part of a strategy for discouraging constitutional rights violations. And they held that this was mandated by their obligation to uphold the constitution.

Now we have the conservative court today. Obviously these 5 members (and particularly 4 of them), do not really believe that part of their duty is taking steps to insure that citizens constitutional rights are not violated. So things like adopting legal principles that will insure that the Brady rule might actually be enforced in most jurisdictions is not a good idea. Okay, but then that’s the philosophy you have to defend to defend this decision. You can’t hide behind, “well the burden is just very high and that’s how it is”. If the burden is so high that there is no legal remedy for the behavior of the Connick’s office (or legal means of discouraging that behavior), then you need to adjust the burden. Or defend the proposition that the court has no business interfering in local jurisdictions power to violate citizens constitutional rights.

This case is a particularly obnoxious example of justice wearing, not a blindfold, but blinders. I live in Miss., and the reputation of the Orleans Parish D.A. office stinks for a radius of several hundred miles. Within the U.S., only the NOLA police match them for scary disregard of fundamental human rights.

P.S. — Thompson’s being black is not irrelevant to this story, or perhaps even to the SCOTUS outcome.

Let me put this in a bit more of technical legal context.
Most criminals’ rights really don’t exist any more. The Supreme Court pretends that they exist, to legitimate the system. But its mighty hard to assert most of them, with white-collar defendants the obvious exception. Right to reasonable bail? This right kicks in only if the judge decides to give you bail in the first place. Right to a lawyer? Sure, but the lawyer won’t have any time for you, and often isn’t competent. Right to freedom from unreasonable search and seizure? It means little more than an obligation on the part of police to lie, and an obligation on the part of the courts to pretend that they’re not lying. Right to a jury? Of course, if you want your sentence tripled. And so forth.
Brady has always been the exception to this. Courts take Brady violations very seriously, probably because a Brady violation is an affront to the dignity of the court. Maybe Connick v. Thompson heralds the end of the last meaningful protection most defendants have against the power of the prosecutor’s office.

The Court overturned a jury verdict, with little more than a fuck you. Conservative judicial activism at its finest. And no, one dude at Reason doesn’t count as “the Libertarian Movement.”

The Roberts Court. With notably rare exceptions, better than the Taney Court.

If one reads Scalia, it’s perfectly plain the man is an authoritarian: a monarchist, no less. Thomas is an abuser-identfied victim. So that’s part of the story. Don’t know about the rest of them. I suspect Roberts himself is an aristocrat wannabe.

Croak!

So what’s the magic number of plaintiffs?

None.

Scott @12:

But you’re ignoring some rather important context here, which is that the Court has already granted absolute immunity to the employees. Shouldn’t this require more attention on the part of the administrators? Or do you agree with the Five Horsemen that nobody in the DA’s can ever be held liable for even the grossest civil rights violations?

Right, prosecutors generally have absolute immunity from personal liability (an absurdly broad immunity moreover, and one that ought to be changed). And so Thompson may well be left without compensation for his injuries. That’s awful, but that’s also not really what the issue in the case was about.

The case is about whether a particular section of a particular statute can provide liability in this kind of case, on the facts offered. It’s not about whether Thompson SHOULD have some legal remedy available to him.

The central type of instance against which section 1983 is meant to protect against is that of a deliberately unconstitutional policy on the part of state or local governments.

So the DA’s office could be liable if it actually had an unconstitutional policy in effect (stated or not), or if there were a failure to train of a magnitude discussed above. No one is claiming that the DA’s office can never be liable.

Now… 3 questions: (1) Should we make municipalities liable for the individual constitutional violations of their employees, when no policy of the municipality caused the violation in the relevant sense? Very possibly, though it’s a hard question.

(2) Should that liability be imposed by overruling precedent and expanding the meaning of section 1983? Very possibly, though my gut instinct is that we’d be stretching the statute beyond its reasonable limits to achieve what we (rightly) view a better law. I’d rather Congress simply amend the law and remove all doubt.

(3) If (1) and (2) are yes, then is THIS the case in which to do so? No. That’s not what was argued, that’s not what was considered, and that’s obviously not what received much discussion in the opinions.

Your sense of justice – my sense of justice – that of likely everyone – is offended by the outcome. A prosecutor withholds key exculpatory evidence, and a man accused is thereby imprisoned for years. He brings a lawsuit for relief, and wins – which seems like the just outcome – and then the Supreme Court, at the end of the game, rejects it.

But the broad issue of whether the law provides Thompson a just outcome was not before the Supreme Court. Instead there’s a much narrower, more technical issue about the limits of section 1983 liability. Our emotions respond to the former, but it is the latter that the Court had to decide.

(I think eeyn524 @24 makes an excellent point; and Paul Campos’s point @14 regarding “autonomous reasoning” is intriguing).

So what’s the magic number of plaintiffs?

That’s a trick question. Which side has more corporations and Republican presidential candidates?

David @28: It is something of a mystery that so many people have considered Scalia to be smart.

Ok, my comment @1, to which this responds, was perhaps not well put. But ISTM that Scalia’s opinions, esp. a concurring opinion like this where he doesn’t have to worry about speaking for anyone except himself and whoever wants to join (in this concurrence only Alito joined him), do have a recognizable voice: they are well-written, sometimes sarcastic or biting, and sound as if he himself has written them, not his clerks. (I vaguely remember a post at The Monkey Cage a while ago which reported on research into stylistic consistency in SC Justices’ opinions and found, among other things, that Scalia was at the higher end in terms of stylistic consistency across terms, which suggests that he does indeed do a fair amount of his own writing.) Of course, that he sometimes writes in his own voice does not mean that his opinions are well-reasoned; that’s a different issue. Often they’re probably not. For instance, in this concurrence he goes off on a line about how one couldn’t know whether blood evidence was exculpatory until it’s been tested, thus there was no clear obligation to turn over untested blood evidence, or something like that. So – duh – test it, unless you don’t really care who actually committed the crime. This “don’t ask don’t tell” approach, as Ginsberg calls it, just seems strained and unconvincing.

@37: G.W. Bush didn’t appoint them. Reagan appointed Scalia and Bush 41, iirc, appointed Thomas.

On prosecutors railroading the innocent, that’s one thing I learned from my father talking about his time as judge. It was something he had to be aware of with certain guys from the DA’s office and had to be creative trying to balance the playing field. However, given the political cast to the judiciary under governors like Deukmejian and Wilson, there simply aren’t going to be trial judges who give a damn about that; in fact I could name one who was more concerned than the D.A. with railroading defendants.

As to why abortion became a big issue in the late 70’s, remember who was elected pope in 1978. His big claim to fame had been being on the wrong side of Humanae Vitae, and his appointees have pretty much been fanatical about using the abortion issue as a way to make up for their loss on contraception. It should be added that that pope and his bishops are extremely misogynistic even by Catholic standards.

@LFC

Yes, I know Bush only appointed two members of the court (to call them justices would be ridiculous). But those two members enabled this injustice.

It is possible that over time Roberts or Alito may realize that they no longer need to be hacks. But it is just as likely that they will follow Thomas and openly auction their decisions by taking bribes through their wives.

@PHB. Don’t hold your breath regarding Roberts or Alito eschewing hackhood. Alito is probably a borderline sociopath (Thomas is full-blown, imho) and Roberts is, well, a hack. I had this same conversation with a friend (still owes me two dollars) regarding Scalia the week he was confirmed. Just wait and see, once he realizes he has lifetime tenure he’ll settle into being a great judge. Still waiting.

#44, #22

I don’t think that the problem is simple either. While it is tempting to consider Thomas simple, Scalia is not.

The idea that the state should only pay compensation if the injury is part of a pattern is bunk. It might be argued that $14 million is too high but $0 is certainly too low.

And that Andrew, is something only a simpleton or a knave would fail to understand.

KCinDC: That’s because they don’t see the ultra-rich as deserving of punishment the way you or I might. They retain a strong Puritan streak about success as a demonstration of God’s favor, so long as one doesn’t pervert the gift of wealth by using it to endanger the system that lets God bestow the blessing on others. (With all the usual special pleading, naturally: wrecking the global economy isn’t sinful, but funding a push for more welfare is.)

If they worked off, say, my standard of who deserves punishment, things would be more lively.

(I’m actually pretty distressed by the American tendency to view the law as the summation of all our moral beliefs (which is, ironically, Lord Denning-esque, who is the great moralizer of English law). Look, we aren’t Continentals. Our legal system has persisted for as long as it did and does because it is fundamentally humble and makes no claims for moral leadership, a system of rules to govern human society that may or may not be morally inspired.

Connick v. Thompson is a travesty, but its being a travesty has nothing to do with a bunch of other stuff that go into the “we don’t like for moral reasons” category.

PHB @47: But as I said @33 in response to Scott’s excellent point, the case is NOT about whether Thompson is deserving of compensation (of course he is). Nor is the case about whether the law adequately provides Thompson with compensation. The legal question is much, much narrower.

Andrew @53

Where does it say in the constitution that a plaintiff must demonstrate fault before receiving compensation for injury to constitutional rights?

The requirement that the plaintiff demonstrate a pattern is bogus in itself.

Next of course we wil discover that Ginny Thomas has received $50K from the defendants in this case like she has in so many other SCOTUS cases.

When Thomas is openly taking bribes from those with business before the court, the analysis of his legal opinions is moot. Thomas took close to three quarters of a million in bribes last year and nobody in the media has the guts to call them for what they are.

The money ends up in Thomas’s pocket, ergo it is a payment to him just as much as to his wife. Ergo it is a bribe. The man is a crook, a corrupt bribe taker.

Oh and did I mention, Thomas takes bribes?

Radley Balko’s take on the case and Scalia:

Scalia is often credited for his consistency. But consistent or not, there’s something pretty unsavory about a judicial philosophy that cites a ruling that we now know sent an innocent man back to prison as an authority to deny compensation to another innocent man who was nearly executed because the government hid the evidence that would have and eventually did exonerate him.

The Youngblood connection makes this ruling just that much worse.

Should we make municipalities liable for the individual constitutional violations of their employees, when no policy of the municipality caused the violation in the relevant sense? Very possibly, though it’s a hard question.

I don’t think it’s that hard. If the municipality issues one of its employees a truck, and he runs me over with it, it’s liable for his negligence (AFAIK), even though their only relevant policy was “someone has to drive this truck to carry out the city’s business”. By doing the act of truck-driving at all, the municipality bears the risks associated with the act, such as liability for accidents. (Unless of course they contract with an insurer to do so, instead.)

In some cases, I think it would be reasonable for the municipality to be able to seek contribution, or even indemnification, from the employee. But they certainly should be on the hook if the employee is judgment-proof; that’s clearly a lesser evil than leaving the victim/plaintiff without remedy.

Prosecutorial powers are clearly more dangerous than a truck, so why shouldn’t the same analysis apply? That which hands out prosecutorial powers to human beings must expect that sometimes they will hurt people with them.

I think if the discussion has come to accusations of personal corruption and enrichment of the Thomases, then it has gone completely off the rails is finally getting to the heart of the matter.

Fixed that for you. You’re welcome.

One’s own heart of darkness and paranoia, perhaps.

Is it your contention that it is entirely seemly for a man whose wife works as a lobbyist representing a plaintiff should hear cases involving that plaintiff? This is open bribery and the only reason we allow it is that it would be too discouraging to acknowledge that this could be happening on the Supreme Court.

bh @46: Yeah, it’s not as if there aren’t dissenting justices. IANAL, but if you have a disagreement between Supreme Court justices, you are talking about a substantive issue, not a legal technicality. So I don’t see how anyone could be dismayed by this state of things and not also disagree with the decision. Unless that person was a lawyer, of course.

they’re just YOUR hacks, so you cut them some slack.

Are you saying Thomas et al are YOUR hacks, i.e. that you agree with and support the conclusion and consequence of their ruling here and elsewhere (setting aside the technical details of how they set out a supporting argument)?

I mean, seriously, I never thought of Ginsburg as my hack, but I also never thought of Thomas or Scalia as your hacks, Brett. If you’re going to drive-by, it would be nice^1^ of you to more explicitly acknowledge that you do indeed accept and “own” the rulings and dissents of Scalia, Roberts, et alia.

^1^This is not intended to imply that I anticipate any niceness from someone who’s been happy to casually slander with a broad brush in other threads. My naivete is probably unbounded in some ways, but not in that way.

I think if the discussion has come to accusations of personal corruption and enrichment of the Thomases, then it has gone completely off the rails.

You hang around on academic-oriented blogs and you’ll see this stuff all the time. The other day, I saw someone accuse the Bush administration of condoning torture!

This makes sense if one understands the nature of American conservatism. American conservatives do not now, nor have they ever, cared for liberty as a broad principle; the only real point they share with libertarians is laissez-faire economic doctrine.

What conservatives are after is the good old days when it was unquestioned that rich white protestant men were in charge; the middle class were the not-so-rich white protestants, everyone else were the lower class, and anyone who questioned his/her place in society was “uppity.”

Oh and did I mention? Clarence Thomas takes bribes.

The problem here is two things have to be operative for the charge to stick. One, the money has to be there; two, the money modified the behaviour. The second simply isn’t there. No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen. It’s far more likely that he was so disposed in the first place.

I feel simply that we not libel Supreme Court justices unless we have solid proof, which isn’t there. The default presumption is that Supreme Court justices might be biased, but they are not corrupt.

Scalia is your average, garden variety Italian fascist.

The problem here is two things have to be operative for the charge to stick. One, the money has to be there; two, the money modified the behaviour. The second simply isn’t there. No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen. It’s far more likely that he was so disposed in the first place.

You’re the guy that sneered “liberals don’t understand the economic arguments of comparative advantage for free trade”, right? The same guy who, as it turns out, didn’t understand what comparative advantage was, and when this was pointed out rather weekly amended that it wasn’t that kind of comparative advantage you were talking about.

History matters. Reputation matters. In this and in numerous other incidents, you have made it abundantly clear to my satisfaction that your opinion on these sorts of topics is not worth the electrons used up in explicating them.

If I were you, I’d concentrate on posts that were a little more evidence-based for a while.

You’re the guy that sneered “liberals don’t understand the economic arguments of comparative advantage for free trade”, right?

Only if you insist on a really uncharitable definition of all liberals being exactly the same as one particular leftist. It is an unmistakable fact that someone like Michael Moore (who is not necessarily a liberal) is somewhat incapable of understanding comparative advantage; the UAW, the same. But I wasn’t even referring to Moore or the UAW.

But you are insinuating here that I am a flat-earther who thinks that Barack Obama or Nancy Pelosi or Henry Waxman don’t understand comparative advantage. This is basically libel.

Apparently Sebastian thinks that if only people had favorable comments to make on Thomas’ previous rulings, then he would be amenable to their arguments about the unseemliness of his wife being involved in these sorts of cases.

What on earth are you talking about? Sebastian admitted that the payments were unseemly (as they must be). He is merely saying that the unseemly payments have nothing to do with the outcome, and thus favouribility to liberals, of Thomas’s decisions, given that he made the same type of decisions with or without the payments. What the heck is there even to argue about the unseemliness of the payments? Is there a strawman somewhere that I’ve not apprehended, who’s saying that they aren’t unseemly?

Sigh.

Don’t.

“No one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen.”

Oh, that’s so sweet.

PHB @55: I understand, but for better or worse, the power to sue for damages for this type of violation doesn’t spring automatically from the relevant portions of the Constitution. The statute which enables that is 42 USC 1983.

Chris @59: Prosecutorial powers are clearly more dangerous than a truck, so why shouldn’t the same analysis apply? That which hands out prosecutorial powers to human beings must expect that sometimes they will hurt people with them.

Yes, that’s what the Cato Institute argued in its amicus brief for the case.

I think it’s a good argument, but it also dramatically expands the civil liability faced by state and local governments under the statute. Given the amount of discretion governments must give to prosecutors and judges, among others, expanding liability so dramatically should be undertaken very carefully, since doing so may have unexpected consequences and high costs. Ultimately you may be right, and I’m sympathetic though undecided.

It’s a hard question in that it’s a very complex policy question, and I’d be wary of 5 judges deciding the question, especially without adequate briefing on the issue or argument.

But I wonder whether we’re not getting at the real heart of the disagreement between the liberal wing of the Court, and the conservative and conservative-but-still-surprising (I’m not sure what to call Kennedy, to be honest) wing of the Court. By loosening the requirements on how much notice a municipality must have before being liable for violations in a failure-to-train case, the liberals move us down the road towards a more general vicarious liability. The conservatives, of course, would be wary of the Court changing the law simply on the basis of reaching a more just state of the law – and Thomas voices his suspicion as to what Ginsburg is really up to at the end of his opinion.

This accounts for Thomas’s – and especially Scalia’s – impatience with Ginsburg’s recounting of the undeniably moving facts of the case. On their view, they are standing firm within their limited powers, refusing to act as philosopher-kings when the occasion tempts them.

There’s something to be said for all sides here, frankly. We should distinguish our emotional reaction to the result from how we should understand and react to Thomas’s opinion.

Never met a working person you didn’t despise eh Myles?

I’m not the one here who’s busily libelling people left, right, and centre.

Sounds like libel to me. Of course what do I know?

A) Michael Moore is probably proud of not understanding comparative advantage, and it’s hardly libel if so; and B) It can’t be libel, at least not in the U.S., if it’s actually true. In the case of the UAW, their economists certainly understand what comparative advantage is, but they pretend not to, and I’ll just take them at their own face value.

Whereas SoV was literally slandering me, out-and-out suggesting that I somehow said “liberals=people who don’t understand comparative advantage.” That is despicable dissimulation, and betrays a wholly dishonest mind.

I think it’s a good argument, but it also dramatically expands the civil liability faced by state and local governments under the statute. Given the amount of discretion governments must give to prosecutors and judges, among others, expanding liability so dramatically should be undertaken very carefully, since doing so may have unexpected consequences and high costs. Ultimately you may be right, and I’m sympathetic though undecided.

Given this, and given that the situation is as described, that exculpatory evidence was deliberately withheld, and so on and so forth, just what are Thomas’s options for redress then? From what you have written, the answer seems to be “nothing”. If that’s the case, would you say so explicitly?

Actually, what Andrew wrote is this:

Right, prosecutors generally have absolute immunity from personal liability (an absurdly broad immunity moreover, and one that ought to be changed). And so Thompson may well be left without compensation for his injuries. That’s awful, but that’s also not really what the issue in the case was about.

The case is about whether a particular section of a particular statute can provide liability in this kind of case, on the facts offered. It’s not about whether Thompson SHOULD have some legal remedy available to him.

My question to Andrew was if there is any conceivable remedy for Thomas sans this particular lawsuit.

I notice discussion of the Thomases’ frankly suspect interconnections has dropped off, and I’m disappointed by that.

I don’t see that there’s much left to say. There’s nothing “suspect” about the Thomases’ connections; it’s quite clear that he takes money from parties with interests in cases before the SCOTUS, that nothing is being done, and that it’s very likely nothing will be done. The difference is how to interpret that — it’s either corruption or no big deal, and if it’s corruption, it’s either unusual or systemic.

So either you think that everyone does it and Thomas is only unusual in laundering the bribes so poorly, or you think that he should be impeached but won’t because of politics, or you think the attacks themselves are another high-tech lynching. How can any of those positions usefully discuss anything with the others?

I don’t see that there’s much left to say. There’s nothing “suspect” about the Thomases’ connections; it’s quite clear that he takes money from parties with interests in cases before the SCOTUS, that nothing is being done, and that it’s very likely nothing will be done. The difference is how to interpret that—it’s either corruption or no big deal, and if it’s corruption, it’s either unusual or systemic.

As I understand it, this is usually the reason given for strictures against the appearance of impropriety. It’s too easy for the corrupt and their defenders to try a “How dare you question my integrity” sort of derailment otherwise. And quite frankly, depending on how something like this would be officially investigated, a rather high bar to clear.

As to Myles’ theatrical performances: As I said, he’s made it quite clear on another thread that he doesn’t understand the economic argument for comparative advantage. That doesn’t necessarily disqualify him from having a valid opinion here. What does disqualify him is that he doesn’t know that he doesn’t know – yet another case of a conservative manifesting the Dunning-Kruger effect.

Of course, given that this wasn’t necessarily a conservative ruling, one wonders how much of it flows from the desire to stick a thumb into the liberal eye. Myles’ “conservatism” often appears to be little more than knee-jerk contrarianism of the “If he’s for it then I’m agin’ it” sort. Needless to say, these sort of comments are also automatically discounted (This one actually came up in my stat class a couple of weeks ago in re just how much a test could be in error.)

he’s persisting in this one.

See comment #93. And before my interlocutor spills again, I want him/her to either back up the previous libel or retract it. Getting caught red-handed is not an excuse for rolling on with further accusations.

I don’t particularly like to go back on this, but SoV is not helping with his ridiculous attempts at sniping while worming away from the ones he’s missed. He seems intent on not letting me take my leave. I don’t like being libelled, and I don’t like libel of any kind really. This is unjustified.

LFC@56, you’re right, let me be less telegraphic. It’s amazing that in this case not only are the defendants and justices free to ignore the supreme law of the land, the plaintiffs are evidently afraid to bring it up. It’s awesome how the Convention on Civil and Political Rights (CCPR) has been so effectively suppressed here at home.

About the pillars. Despite Responsibility to Protect (R2P) being a hot topic, as the rationale for attacking Libya, you would never know it has three parts or Pillars. The sole, obsessive focus is on Pillar 3, intervention or ‘response,’ pronounced war. Pillar 1 is, broadly, state responsibilities. To be fully sovereign, states must respect and protect core human rights, including the CCPR; they must accede to the Rome Statute and the International Criminal Court; they must comply with humanitarian law, particularly the UN Charter; and they must promote inclusive societies. If a state has not earned its sovereignty, as we clearly have not, Pillar 2 comes into play: cooperative international capacity building. So after this decision, at the very least the international community should send development consultants to twin our Supreme Court justices until they come up to the minimal standards of the civilized world as defined in R2P.

Myles you never responded to this statement
“But even if Moore does refuse to understand comparative advantage, you’re still slandering him if you say he’s incapable of understanding: that’s tantamount to claiming he is stupid, rather than obstinate.”

Until you do I think it would be wise if you refrained from accusing anyone of libel.

that’s tantamount to claiming he is stupid, rather than obstinate.”

I meant to say he is unable. And he genuinely does not understand comparative advantage, either out of choice, obstinacy, or otherwise. He genuinely doesn’t. That’s not a slur against him, and I don’t think he would regard it as one either.

You are going to tell me with a straight face that Justices Brennan and Marshall

Insofar as Marshall engaged in Talmudic finessing of precedents to achieve preconceived aims independent of autonomous legal reasoning (however virtuous the aims might be), yes, by that technical definition, he is a hack. No more of a hack than perhaps Ginsburg or Roberts, or maybe even Kennedy, but a hack.

Doesn’t mean he was a bad justice. I don’t particularly think much of his jurisprudence, but then I don’t go about pretending that Richard Posner, who is my favourite living judge, is completely clean on that account either, although he does it less than Marshall, and generally doesn’t bother hiding it when he does.

We understand completely what you want, we just abhor it.

“We” =/= Michael Moore.

What on earth does my prep school have anything to do with this

I dunno, what did your prep school have to do with Disqus threaded comments?

I think I am entirely entitled to demand…

Myles, doesn’t it feel at least a little weird to go on about your entitlement to use this comment space to make demands of others, in the same thread in which you asked why moderators weren’t acting to contravene other people’s use of this comment space? CT policy, etc, etc: “commenters should remember their position as guests, and not seek to assert imagined rights to publication.”

There exist courts where you could in theory bring charges against people for crimes you allege they have committed against you, and I’m pretty sure that’s where you are entirely entitled to demand redress for your grievances. But whatever, do as you will, there are prettier graveyards for me to go whistle past.

@ Myles 71

The problem here is two things have to be operative for the charge to stick. One, the money has to be there; two, the money modified the behaviour. The second simply isn’t there.

First off, there is absolutely no such requirement. If a public official accepts money from people with issues before him it is criminal regardless of whether it modified his behavior. To accept money is to accept a bribe, end of story.

As for your false accusation that I have libeled Thomas, that is itself libelous.

In this case, Thomas accepted $700,000 in bribes. He is corrupt and his corruption is utterly indefensible.

“We” =/= Michael Moore.”
Somehow I think Mr. Moore is smarter than you give him credit for.

With notably rare exceptions ($90,000 in a freezer), no one who holds such high office in the U.S. takes money bribes on such an important matter; it just doesn’t happen.

Being a member of Congress in America is not, generally speaking, regarded as holding high office.

Of course they are bribes!

Only by the standards of folk morality. No legal definition could abide by this.

in the same thread in which you asked why moderators weren’t acting to contravene other people’s use of this comment space?

That was a half-joking rhetorical question (is there a sarcasm font?), and in any case as response to straight-up conspiracy theory mongering. If there’s one thing I find seriously creepy, it’s conspiracy theories.

and I’m pretty sure that’s where you are entirely entitled to demand redress for your grievances.

It’s not so much redress as the impossibility of having a civilized conversation when your interlocutor insists on making stuff up about you. As far as I am aware, SoV is very insistent on simultaneously a) making stuff up about me, while b) saying that I am the discreditable one. Both together cannot hold.

Somehow I think Mr. Moore is smarter than you give him credit for.

Well, if he is indeed smarter, he is either a) ignorant of economics by choice, obstinacy, or chance or b) lying or c) cognizant of economic arguments but rejects them in favour of his own interpretations.

a) seems the most likely. I don’t think he’s lying and I don’t think he’s a heterodox economics mind.

Oh what a poor naive fool you are.

As for your false accusation that I have libeled Thomas

You have indeed libeled Thomas, if he were to sue you for libel and you cannot prove the truth of your assertions to a standard satisfactory to a court of law (this is the American version), given that you accused him of not just impropriety but bribery, IIRC. Of course, this isn’t a court of law (thankfully).

Look, SoV, you libelled me. You haven’t retracted that libel. Don’t try to worm out of it. You can think however you want of my opinions, but the point is that you’ve fabricated, out of thin air, opinions that I’ve never held in the first place.

Sigh. Believe it or not, I’ve gone very easy on you. And to prove it, I’ll ask you to quote, precisely, what I have said that is so libelous (I should think my critiques quite devastating enough as they are), and why, precisely, it is so libelous. I’m pretty sure you can’t do it . . . which is yet another reason to discount anything you may have to say.

*Everything from “Bribery” to “[emphasis added]” in blockquotes…

Myles, the first rule when finding oneself in a hole is to stop digging. You apparently are incapable of understanding that.

Myles @ 115

No, you are libeling me with a false accusation of libel.

I can prove every word that I wrote. Ginny Thomas has admitted receiving the $700,000. That is proven beyond doubt. It is equally proven beyond doubt that the money comes from people who have issues before Clarence Thomas’ court. Ergo there are no facts at dispute and truth is a perfect defense in libel.

Since it is proven beyond doubt that he has taken the money, the only point in dispute is whether doing so is improper. This is really not a difficult question, the money is very clearly intended to influence his vote and is thus clearly a bribe.

The fact that conservatives would even attempt to justify Clarence Thomas’ bribe taking demonstrates that they are equally corrupt. As a moral question, this is not even close. $700,000 is a huge bribe by any standard.

Scent of Violets @89: Yes, it appears Thompson is without a remedy on these facts in federal court.

That’s still not what I’m asking. You seem to be suggesting that he is without any remedy at all, federal courts or otherwise. Is that really what you’re saying. Because if that’s true, then:

PHB @47: But as I said @33 in response to Scott’s excellent point, the case is NOT about whether Thompson is deserving of compensation (of course he is). Nor is the case about whether the law adequately provides Thompson with compensation. The legal question is much, much narrower.

doesn’t make any sense. This is nothing more, in fact, than saying that of course people have rights, they’re just routinely and uniformly violated in the sure knowledge that no penalties or compensation will ever reply. As silly as saying that everyone is actually colored green, but that it’s an invisible green that nobody can see, and as other people have already noted.

really strange fruit @97

Convention on Civil and Political Rights (CCPR) is apparently not the law of the land in the United States for domestic law. It is likely not even the law of the land for the US as applied to international law.

http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights#United_States
The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[64] Some have noted that with so many reservations, its implementation has little domestic effect.[72] Included in the Senate’s ratification was the declaration that “the provisions of Article 1 through 27 of the Covenant are not self-executing”,[73] and in a Senate Executive Report stated that the declaration was meant to “clarify that the Covenant will not create a private cause of action in U.S. Courts.”[74]
Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action within the U.S. judicial system is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 (6th Cir., 2001) (discussing ICCPR’s relationship to death penalty cases, citing to other ICCPR cases). Thus while the ICCPR is ostensibly binding upon the United States as a matter of international law, it does not form part of the domestic law of the nation.

really strange fruit: thanks for replying

james @127: plaintiff still could have cited CCPR as persuasive (not necessarily binding) authority. (Not that it would have changed the 5-4 outcome, of course.)

Scent @125: I’m not sure what you mean. I said that (1) the case was not about whether Thompson has an adequate remedy, and (2) Thompson may in fact NOT have an adequate remedy. I do not know whether he has a possible action under state law.

But there’s no contradiction between (1) and (2). Nor do they together imply that rights are frequently violated without any legal possibility of penalty. Had the prosecutor who withheld the evidence lived, I’d guess that he stood an excellent possibility of a criminal investigation and prosecution.

I do agree that in this case the law failed as a vehicle by which justice might be secured.

On Justice Thomas… yeah, the bribery accusation is silly. There is an appearance of impropriety argument, but the standard is slightly looser with the Supreme Court because, after all, there are only 9 of them.