FDL Book Salon Welcomes Erwin Chemerinsky, The Case Against The Supreme Court

Welcome Erwin Chemerinsky (Dean, University California, Irvine, School of Law) (Above The Law) and Host bmaz (Emptywheel.net) (Twitter) and Dahlia Lithwick (Slate) (Twitter)

 The Case Against The Supreme Court

Today’s Book Salon is going to be very special. Erwin Chemerinsky, Dean of the University of California Irvine Law School, has authored an absolutely fantastic book, The Case Against The Supreme Court. Both of your hosts today know, and have very long admired Dean Chemerinsky. We often get asked by friends and readers who would we choose, if we got to make the next appointment to the Supreme Court. Erwin is at the top of both of our lists. He is truly a progressive and innovative legal mind.

So often in modern conversation you hear complaints about how out of touch and damaging the Supreme Court has become. Whether from Bush v. Gore, to Citizen’s United, to the more recently destructive Hobby Lobby decision, to name a bare few, the cries against SCOTUS are getting louder by the term. Yet far too often that hue and cry is by lay people and concerned activists, and the scholars and professors serve up a more nuanced take with pulled punches steeped in complicated case law and argument. Not Dean Chemerinsky. This is a full on broadside against what the court has become and, maybe, what it always has been once the romanticized veneer of reverence is stripped away.

The Case Against the Supreme Court is exactly the case which must be made against a Supreme Court that has relentlessly upheld abuses of power instead of curbing them, that has trampled on the common citizen while propping up oligarchs, business and the power elite. Erwin brings a powerful wake up call to one and all as to the ills of the current court, both in ideology and construct. And, best of all, he does it in an imminently approachable, easy to read and flowing manner. Lawyers will love this book, but you certainly do not need to be one to read it and derive great benefit from it.

I could tell you why I think The Case Against The Supreme Court is so necessary, but, frankly, Dean Chemerinsky has already done so in an article literally entitled “Why I Wrote This Book”:

For the first 78 years of American history until the ratification of the 13th Amendment in 1865, the Court consistently sided with slave owners and enforced the institution of slavery. For 58 years, the Court embraced the noxious doctrine of separate but equal and approved Jim Crow laws that segregated every aspect of Southern life. Nor are egregious mistakes by the Supreme Court on race just a thing of the past. The Roberts Court has furthered racial inequality by striking down efforts by school boards to desegregate schools and by declaring unconstitutional crucial provisions of a landmark civil rights statute, the Voting Rights Act of 1965.

The Court also has continually failed to stand up to majoritarian pressures in times of crisis. During World War I, individuals were imprisoned for speech that criticized the draft and the war without the slightest evidence that it had any adverse effect on military recruitment or the war effort. During World War II, 110,000 Japanese-Americans were uprooted from their life long homes and placed in what President Franklin Roosevelt referred to as concentration camps. During the McCarthy era, people were imprisoned simply for teaching works by Marx and Engels and Lenin. In all of these instances, the Court erred badly and failed to enforce the Constitution. Most recently, the Roberts Court held that individuals could be criminally punished for advising foreign organizations, designated by the government as terrorist organizations, from using the United Nations for peaceful resolution of their disputes or gaining humanitarian assistance.
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But I believe that there are many reforms that can make the Court better and taken together make it less likely that it will so badly fail in the future. In the last chapter, I propose a host of changes, including instituting merit selection of Supreme Court justices, creating a more meaningful confirmation process, establishing term limits for Supreme Court justices, changing the Court’s communications (such as by televising its proceedings), and applying ethics rules to the justices.

The Case Against The Supreme Court is all that and much, much more. The last paragraph I quoted there is critical. Far too many books of this nature merely identify the problems without displaying their full genesis, and identifying concrete and practical ideas to fix the ills. In a nearly forty page long closing chapter, Chemerinsky lays out exactly how the Supreme Court can be recast into a position of vitality and good for the citizens it is meant to serve.

If you have ever, for any reason, thought about buying a book on the Supreme Court and devouring it, make it The Case Against The Supreme Court. I guarantee you will be thrilled you did, it is really that good.

So, come join us and our special guest, Dean Erwin Chemerinsky, for spirited discussion of the Supreme Court, how it got to be the way it is, and our path forward. (more…)

FDL Book Salon Welcomes Erwin Chemerinsky, The Case Against The Supreme Court

Welcome Erwin Chemerinsky (Dean, University California, Irvine, School of Law) (Above The Law) and Host bmaz (Emptywheel.net) (Twitter) and Dahlia Lithwick (Slate) (Twitter)

 The Case Against The Supreme Court

Today’s Book Salon is going to be very special. Erwin Chemerinsky, Dean of the University of California Irvine Law School, has authored an absolutely fantastic book, The Case Against The Supreme Court. Both of your hosts today know, and have very long admired Dean Chemerinsky. We often get asked by friends and readers who would we choose, if we got to make the next appointment to the Supreme Court. Erwin is at the top of both of our lists. He is truly a progressive and innovative legal mind.

So often in modern conversation you hear complaints about how out of touch and damaging the Supreme Court has become. Whether from Bush v. Gore, to Citizen’s United, to the more recently destructive Hobby Lobby decision, to name a bare few, the cries against SCOTUS are getting louder by the term. Yet far too often that hue and cry is by lay people and concerned activists, and the scholars and professors serve up a more nuanced take with pulled punches steeped in complicated case law and argument. Not Dean Chemerinsky. This is a full on broadside against what the court has become and, maybe, what it always has been once the romanticized veneer of reverence is stripped away. (more…)

FDL Book Salon Welcomes Trevor W. Coleman and Peter J. Hammer, Crusader for Justice: Federal Judge Damon J. Keith

Welcome Trevor W. Coleman (TrevorWColeman.com) (Twitter) and Peter J. Hammer (Wayne State Univ.) (Director, Damon J. Keith Center for Civil Rights), and Host bmaz (Emptywheel.net) (Twitter), and Kevin Jon Heller (Melbourne Law School) (Twitter)

Crusader for Justice: Federal Judge Damon J. Keith

Back in February, I learned via an emailed Detroit News article from Marcy Wheeler that Judge Damon Keith would be the subject of a very promising new book coming out. Before I had even read the article, I fired it off in an email to Beverly Wright, the wonderful curator extraordinaire of Book Salon here, begging her to get the book for us. Little did I know the book was not even scheduled for release until now. But it is here! And what a joy it is; we are in for a real treat today.

Damon Keith is a legend. The kind of judge other judges speak about with hushed reverence and admiration, and for good reason. I first learned of Judge Keith in law school in the early ’80s when studying what is commonly known as “The Keith Case“. It was, and is, one of the most important Fourth amendment cases in history, and undergirds all significant Fourth Amendment law on domestic targeting and electronic surveillance of persons within the United States.

Nobody knows the real name of the case, which is United States v. United States District Court, and only the wonky few among us ever knew the actual criminal defendants’ names. Everybody knows “The Keith Case” by the name of the brilliant and gutsy young judge who tamed the US government in the early 1970s. That man is Damon Keith, and he is STILL an active judge on the Sixth Circuit, albeit on senior status.

I could write thousands of words on the fabric and importance of the Keith Case alone here, yes, it is really is that fascinating and seminal. But that would do a disservice to remarkable history of the man, and the fine book on him authored by our guests today, Trevor Coleman and Peter Hammer.

Professor Henry Louis Gates, Jr., himself a longtime legendary figure in American social justice, contributed a back cover blurb for Crusader For Justice that really sums up Damon Keith, the man, perfectly:

No one will ever forget Judge Keith’s bold declaration in Detroit Free Press v. Ashcroft: “Democracies die behind closed doors”. Nor will they forget his contributions to achieving social justice and racial justice through his decisions involving discrimination, national security, and civil liberties. Judge Keith came from humble roots in Detroit. Having suffered racial injustice first hand, he had the bravery to take the phrase “equal justice under law” literally. Life experience matters, which is why diversity on the bench cannot be forsaken. Crusader For Justice, above all else, is the story of judicial courage – the story of a man unafraid to do what he knew was right.

Gates nails the essence of Damon Keith, but he also describes the brilliance of Crusader For Justice as a biography. There is so much more to Damon Keith, the man and his history, than his judicial works. Yet the man and his history are inseparable from his jurisprudence spanning six different decades. Hammer and Coleman masterfully weave the threads of Damon Keith’s life into the tapestry of his work. Quite frankly, I am at a loss for words to describe how fantastic this book truly is. [cont’d.] (more…)

FDL Book Salon Welcomes Trevor W. Coleman and Peter J. Hammer, Crusader for Justice: Federal Judge Damon J. Keith

Welcome Trevor W. Coleman (TrevorWColeman.com) (Twitter) and Peter J. Hammer (Wayne State Univ.) (Director, Damon J. Keith Center for Civil Rights), and Host bmaz (Emptywheel.net) (Twitter), and Kevin Jon Heller (Melbourne Law School) (Twitter)

Crusader for Justice: Federal Judge Damon J. Keith

Back in February, I learned via an emailed Detroit News article from Marcy Wheeler that Judge Damon Keith would be the subject of a very promising new book coming out. Before I had even read the article, I fired it off in an email to Beverly Wright, the wonderful curator extraordinaire of Book Salon here, begging her to get the book for us. Little did I know the book was not even scheduled for release until now. But it is here! And what a joy it is; we are in for a real treat today.

Damon Keith is a legend. The kind of judge other judges speak about with hushed reverence and admiration, and for good reason. I first learned of Judge Keith in law school in the early ’80s when studying what is commonly known as “The Keith Case“. It was, and is, one of the most important Fourth amendment cases in history, and undergirds all significant Fourth Amendment law on domestic targeting and electronic surveillance of persons within the United States. (more…)

FDL Book Salon Welcomes Thomas J. Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

Welcome Thomas J. Healy (Harvard Kennedy School) (Seaton Hall) and Host bmaz (Emptywheel.net)

The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

The greatest works on history have lessons for their readers today, and we have such a volume for this Salon. It is a tale of both men and justice; of both a man and a Justice, Oliver Wendell Holmes. Today we are here to discuss The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America. It is the tale of arguably America’s greatest Supreme Court Justice and his most enduring work, the gestation of modern First Amendment law – work performed on the losing side of the case no less.

And that is the definition of a legal dissent, an objection to the majority decision and statement of the contrary case. History can prove the dissent every bit as powerful as the majority opinion though, and Holmes’ dissent in the case of Abrams v. United States was just that:

That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion.

Holmes’ ringing dissent is not particularly long, but from it came the modern understanding of First Amendment law that influences nearly every aspect of our life today, including the ability to have this discussion on an open and free forum such as the internet.

Oliver Wendell Holmes did not arrive at his seminal turning point easily. The Abrams case was decided in 1919; for his 16 years on the Supreme Court bench prior to Abrams, Justice Holmes had been an opponent of individual rights in general and certainly to those seemingly guaranteed by the First Amendment. In fact, Holmes had been a staunch supporter of criminal convictions in free speech cases. Until Abrams, First Amendment law was, in most regards, a curiosity of little meaningful import.

In The Great Dissent, Thomas Healy takes the reader on the journey of Oliver Wendell Holmes the man from where he had been, to how he came to his momentous change of heart and penning of the Abrams dissent. It is a story of not just Justice Holmes, but the more progressive friends, politicians, fellow judges, and the changing times, that turned Holmes. Some of the greatest names in American law – Learned Hand, Harold Laski, Felix Frankfurter and Zechariah Chafee – factor in. It is an engrossing, fun and captivating story that is the complete antithesis of dry legal history. [cont’d.] (more…)

FDL Book Salon Welcomes Thomas J. Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

Welcome Thomas J. Healy (Harvard Kennedy School) (Seaton Hall) and Host bmaz (Emptywheel.net)

The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

The greatest works on history have lessons for their readers today, and we have such a volume for this Salon. It is a tale of both men and justice; of both a man and a Justice, Oliver Wendell Holmes. Today we are here to discuss The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America. It is the tale of arguably America’s greatest Supreme Court Justice and his most enduring work, the gestation of modern First Amendment law – work performed on the losing side of the case no less.

And that is the definition of a legal dissent, an objection to the majority decision and statement of the contrary case. History can prove the dissent every bit as powerful as the majority opinion though, and Holmes’ dissent in the case of Abrams v. United States was just that: (more…)

Obama Recess Appointments Slapped Down by DC Circuit, CFPB at Risk

What can only be described as a blockbuster opinion was just handed down by the DC Circuit in the case of Canning v NLRB, the validity of President Obama’s recess appointments has been slapped down. Here is the full opinion. The three judge panel was Chief Judge David Sentelle, Karen Henderson and Thomas Griffith, all Republican appointees (one from each Bush and one Reagan).

The immediate effect of the court’s decision is, of course, on the National Labor Relations Board (NLRB). Noel Canning was aggrieved by a decision of the NLRB and petitioned for review, the NLRB cross-petitioned to have its decision upheld. Fairly standard stuff – except the quorum on the NLRB Board was met only because of the fact Barack Obama controversially recess appointed three members in January 2012, as well as concurrently recess appointing Richard Cordray to be the Director of the Consumer Finance Protection Bureau. So, three out of the five members of the NLRB Board were, according to Canning’s argument, not validly sitting and therefore their decision was invalid as to him

Canning had merits arguments on the specific facts of his individual case, but the court found those non-compelling and proceeded on the Constitutional arguments surrounding the validity of the recess appointments. And the Court agreed with Canning that Obama’s recess appointments were invalid. The discussion by the court can be gleaned from these passages:

All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
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It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
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The Constitution’s overall appointments structure provides additional confirmation of the intersession interpretation. The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No. 67 that advice and consent “declares the general mode of appointing officers of the United States,” while the Recess Appointments Clause serves as “nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, supra, at 408. The “general mode” of participation of the Senate through advice and consent served an important function: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, supra, at 456.

Then the blow was delivered: (more…)

DOJ Colludes With Scott Bloch to Ratify Perjury and Obstruction of Congress

The event we have all long been waiting for came just in time to have been lost in the the Christmas/New Year’s holidays. Yes, it is the much anticipated news on the DOJ “prosecution” of the former Office of Special Counsel head, under the Bush/Cheney regime, Scott Bloch.

As you may recall, when we last heard tangible news on the Blochhead front, it was June 20 of this year when his release restrictions were voided. The court voided Bloch’s release conditions because the DOJ had inexplicably left the case hanging in limbo after his previous guilty plea had been set aside, thus allowing Bloch to withdraw from it, all the way back in August of 2011.

So, between August 2, 2011 and December 21, 2012, a period of nearly a year and a half’s time, the DOJ did nothing whatsoever in furtherance of prosecuting Scott Bloch. Until Friday December 21, 2012. And the vaunted Department of Justice, on the Friday before the Christmas holiday…..filed a Motion to Dismiss. However, dismissal of the original case was not the end of the story, as clause 5 of the Motion to Dismiss contained this language:

Concurrent with this Motion to Dismiss, the government is filing a new information.

Well, not quite concurrent, as the Motion to Dismiss was filed mid to late morning, and the new information was not made public until the end of the day when it would be totally hidden. The new charge, a misdemeanor, is pursuant to 18 USC 1361 Depredation of Government Property or Contracts. The factual basis is made out from the “seven level wiping” Bloch caused to be done. Here is the new information charging document. The misdemeanor statute charged reads:

Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.

A separate docket entry set the date for formal entry of the plea for Friday January 4, 2013: (more…)

R.I.P. Senator Specter, You Will Be Missed

Crossposted from emptywheel

The Snarlin’ has ceased; via CBS News:

US Senator Arlen Specter, whose political career took him from Philadelphia City Hall to the US Congress, died Sunday morning at his home in Philadelphia at the age of 82 from complications of non-Hodgkins Lymphoma. He was born February 12, 1930.

His career was marked by what the pundits and Specter himself called “fierce independence.” But long before Specter ever stepped onto the Senate floor in Washington DC, he made it into national prominence by serving as assistant counsel for the Warren Commission, which investigated the 1963 assassination of Pres. John F. Kennedy.

Specter postulated the controversial “single-bullet theory” that was eventually embraced by the panel and still stands to this day, despite the cry of conspiracy theorists who say there was more than one gunman in Dallas that November day.

“Admittedly a strange path for a bullet to take, but sometimes truth is stranger than fiction,” Specter said.

We have had a complicated relationship with Arlen Specter here at Emptywheel, sometimes castigating him, sometimes praising him, sometimes laughing at him, sometimes laughing with him. Specter engendered all those things. But I always sensed a very decent heart beating underneath Specter’s surface, even if it was all too often masked by his votes for, and often vociferous support of, ever more destructive policies of the right.

For this, Specter earned the nickname “Scottish Haggis” here in the annals of Emptywheel. The term had its root in Mr. Specter’s predilection for Scottish Law, and goes all the way back to the original incarnation at The Next Hurrah. For a number of reasons, offal and otherwise, it was a nickname that stuck and seemed appropos and seemed to reflect the complicated nature of Senator Specter.

On a personal note, I did not have an abundance of interaction with Sen. Specter and his office, but in that which I did have, I found him and his office to be beyond both kind and professional. One instance stands head and shoulders above the others, and surrounded the Obama scuttled nomination of Dawn Johnsen to be head of the Office of Legal Counsel (OLC). It was my contention from the outset that the whip count votes were there to confirm Professor Johnsen for the job she was perfect for. And, in the roiling aftermath of the Bush/Cheney unitary executive excesses, the country desperately needed Johnsen’s intellectual sense of honesty and Constitutional integrity.

The only reason Dawn Johnsen did not get confirmed as OLC head was Barack Obama used her as false bait and cat nip for the more noisy progressive liberals. It was a glaring sign of depressing things to come from the not nearly as Constitution minded Barack Obama as had been pitched in his election run. Not only could Johnsen have been confirmed, as I pointed out before, she could also have been recess appointed by Obama. Despite all the ridicule I took at the time, that point has been proved conclusively by the later recess appointment of Richard Cordray to be head of the CFPB (another instance of Obama using a supremely qualified progressive, Elizabeth Warren, as bait and then hanging her out to dry).

The point was never that Dawn Johnsen couldn’t be confirmed, it was that Barack Obama and the insiders of his White House did not want her confirmed into leadership of the OLC. I knew that from talking to several inside the DOJ and Senate Judiciary Committee, but that was all off the record. When I found an obscure old comment from Arlen Specter indicating he was willing to support a cloture vote for Johnsen as far back as his second meeting with Dawn Johnsen on or about May 12, 2009, it was by then an old, and quite obscure comment. Specter could have walked it back or dissembled on the subject.

Arlen Specter didn’t walk it back or dissemble, instead he personally confirmed it to me. With the already in the bag vote of Sen. Richard Lugar, that was the 60 votes for Dawn Johnsen at OLC. Specter knew it would infuriate both the GOP and the Obama White House, and he knew exactly what story I was writing. He stood up. Oh, and, yes, he knew about “Scottish Haggis” too. The man had a sense of humor.

For the above vignette, and several others, I will always have a soft spot in my heart for Snarlin Arlen Specter. His life and work in government spanned over five decades, he has got my salute today.

Sen. Specter repeatedly had to fight off serious cancer, and he did so with aplomb, courage and his good humor. He also was a tireless champion for the NIH and funding of cancer and stem cell research. When confronted with the last battle, the one which finally took him, Specter was upbeat, defiant and determined to get back to his part time hobby of stand up comedy. May the Scottish Haggis have many laughs wherever he may travel.

The Padilla v. Yoo Decision Will Not Put Chong’s Claim Up in Smoke

There has already been a lot of very good commentary across the internets and media on the notable decision in the 9th Circuit this week in the case of Jose Padilla v. John Yoo. Although many, if not most, commenters seem outraged, the decision is, sadly, both predictable and expected. I also think Marcy had about the right, and appropriately snarky, take on the decision embodied in her post title “Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003“. Yep, that is just about right.

As to the merits, Jonathan Hafetz, in a very tight post at Balkinization, hits every note I would urge is appropriate, and does so better than I probably could hope to. Go read Jonathan. Above and beyond that, I think Steve Vladeck’s analysis is spot on:

In other words, (1) it wasn’t clear from 2001-03 that CIDT “shocks the conscience”; (2) Padilla’s mistreatment was not as severe as prior cases in which courts had recognized a torture claim; (3) it therefore wasn’t clear whether Padilla’s mistreatment was torture or CIDT; (4) it therefore wasn’t clear that Padilla’s mistreatment “shocks the conscience.”

Thus, the panel’s approach is basically that the mistreatment here falls between conduct that prior courts (including the Ninth Circuit) had held to be torture and conduct that prior courts had held to be merely CIDT. Because Padilla’s mistreatment was less severe than prior examples of torture, and more severe than prior examples of CIDT, it’s just not “clear” on which side of the torture/CIDT line Padilla’s mistreatment falls… Of course, the fact that A > B > C proves nothing about where B is. And under Hope v. Pelzer, the question in qualified immunity cases is not whether the plaintiff can prove that the defendant’s conduct was at least as bad as something already acknowledged to be unlawful. As Justice Stevens explained, it isn’t the case that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Instead, “in the light of pre-existing law[,] the unlawfulness must be apparent.”

Perhaps the panel would have reached the same result had they not skipped these steps. But to my mind, these are fairly significant omissions…

Wheeler, Hafetz and Vladeck are all correct about the infirmities in the 9th Circuit’s version of Padilla (without even getting to the 4th Circuit’s version of Padilla, contained in Padilla/Lebron v. Rumsfeld PDF).

At this point, arguing over key governmental personnel accountability, or lack thereof, is pretty much a bit of Walter Mitty fantasy; I am much more interested in the way the various Bush/Cheney war on terror cases have cemented an already present trend in American jurisprudence to restrict, if not outright block, access of litigants to courts. Jon Hafetz thinks the rule of law caught a break when the 9th didn’t reach the merits and weight of “special factors” preclusion of Bivens liability. And, sadly, that may be about right. There are two real issues that, while perhaps trending before the national security state set in after 911, jumped to warp speed after. Access preclusion and Bivens narrowing.

The first area, access preclusion, is demonstrated perfectly by the insidious effects of the twin opinions in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal. Then House Judiciary Chairman Nadler said of the evil twin cases in a 2009 hearing: (more…)