Friday, February 22, 2013

Seeing the Supremes

Every so often I spend a morning at the U.S. Supreme Court watching oral arguments--I go every few years when there's a case that may have some relevance for me and my work, or when it just seems too interesting to resist the pull. This past Tuesday, I went there to see a case dealing with whether a prisoner at the Lewisburg penitentiary in Pennsylvania could sue the U.S. Government when he was allegedly assaulted by some correctional officers, which is what you call guards if you want to sound like you know something about the prison biz.

Briefly, when you sue the government you in effect have to get the government's permission--it waives a defense called "sovereign immunity" which derives from old legal rules that make it impossible to sue the king, or the sovereign. The U.S. Government allows you to sue it by complying with the Federal Tort Claims Act, which says when you can sue the government. There's an exemption--meaning you can't sue--when a law enforcement officer is performing law enforcement functions.  This was what the case I heard was all about.

The most interesting development came after the intermediate appellate court had upheld a trial court ruling that said the prisoner couldn't sue the government because of the exemption. Apparently, all the other regional appeals courts that had ruled on this point had decided the other way, saying the prisoner could sue. Differences among the circuit courts are often the best way to get the Supreme Court to take the case so it can decide which intermediate court decision to uphold.

And the whole picture became even more interesting because the U.S. Government, acting through the person who handles all of its cases in the Supreme Court--the Solicitor General, or the SG--decided to change the government's position after it had won in the intermediate court. The SG filed a brief in the Supreme Court saying that the government had changed its mind, and now said that the other appeals courts were right and that the prisoner could sue the government.

As you might expect, this doesn't happen all that often. The Solicitor General has the authority to tell most other government agencies whether they can appeal to the Supreme Court or not.  He claims to act in the interest of justice as well as the interest of the government. This was one time when he clearly was deciding that the government agency--the Bureau of Prisons--was wrong and the prisoner whom the government had defeated in two courts previously was really right. 

That's all well and good but the Supreme Court may or may not agree. When the SG changed his mind, the Supreme Court appointed a lawyer to argue the side that otherwise would not have been heard--that the intermediate appellate court that had ruled for the prison was correct. Both lawyers were pretty good--the lawyer for the prisoner, who was from New York, and the appointed lawyer representing the point of view of the intermediate court (and the prison) who was from D.C. The Solicitor General's lawyer, who wears a morning coat to court, also argued--he was given ten minutes of the prisoner's lawyer's half hour.  Usually the side with which the SG agrees gives his lawyer that 10 minutes because the SG's office has a lot of credibility with the Supreme Court and often does a better job in its 10 minutes than other lawyers do in a half hour.

There were a lot of questions from the justices--most trying to get to the issue of whether the correctional officers (COs) were law enforcement officers under the relevant legal provision and whether what they were doing was properly defined as a law enforcement function. After the argument was over, I had the feeling that none of the lawyers or the justices really had a very clear idea of what goes on in real-life prisons.

This was the same feeling I had after the second case--which had attracted a lot more attention and dealt with Monsanto, the chemical company, suing a farmer whom the company said had violated its contract with him as to the use of the hybrid, genetically-modified seeds he had bought from the company. This is a big deal case because it conceivably concerns large amounts of money especially if the farmer managed to win. I don't think he will, possibly because he doesn't deserve to win, but also because I didn't think his lawyer was all that effective, and in this situation, he needed to be if the farmer was to have a chance.

The company had one of the small number of real pros who argue cases in the Supreme Court: a former Solicitor General. He did a great job. But I was left with a similar feeling to what I felt after the first case: these lawyers, despite trying hard, didn't really understand the way farms and farmers operate. The lawyers are very sharp but as litigators they learn about lots of businesses or operations in a short period and then go on to the next case. Even these top-drawer legal eagles seemed to lack really solid knowledge and familiarity with the nuts and bolts of how things work, in this case, in the real fields.

I often feel that way about the justices, too. They try to show that they have read the briefs and other documents but sometimes they display the limitations of the process. You just can't know all that you need to through this process. It is clearly a shortcoming of the adversary legal system. And this week, I felt that both cases showed that it makes a big difference at times.

Tuesday, February 5, 2013

The Paranoid Style

Gun control has never been a major issue for me. So long as the regulations were reasonable and provided legitimate allowance for hunting and such, I had no big problem with restricting handguns and assault weapons. But since the Supreme Court--in a badly-reasoned decision as contrasted with the insightful dissent for four justices by Justice Stevens--decided that the 2nd Amendment limited such reasonable regulation, all hell has broken loose.

I'm not referring to the various "incidents"--where loners who might or might not be mentally ill have blown away multiple victims, but instead to the raving craziness of the gun lobby and its backers. All the really crazy people are the ones who contend that the President is plotting to take away freedom and liberty, or that having guns in schools or churches will protect anyone, or, even worse, that people should be armed in their homes, ostensibly to fire when someone rings the doorbell.

The insularity of the right-wing world has produced this weird space where paranoia runs rampant. First of all, we got along quite well when assault weapons were banned. And so does most of the civilized world. The gun-show exception to background checks has driven a huge hole in the aim to check out those who would purchase weapons.  And state-level regulation is ineffective because guns sail across state lines.

To be sure, I don't agree with the D.C. government's effort to frustrate the Supreme Court decision by bureaucratic superstructure. It just plays into the hands of the gun nuts.   But the whole anti-regulation campaign makes me think only of the great historian Richard Hofstadter, who passed away at far too early an age, and his major work, The Paranoid Style in American Politics. He anticipated this whole line of non-argument. 

You'll be hard put to find any leftist or centrist who regards Obama as anything close to being a socialist. And it took the Newtown and Aurora massacres to get our President to propose merely restoring the rather half-hearted gun control measures we have previously had in place and which the NRA actually endorsed back in the '90s.  It's sort of wild that Ronald Reagan, who unfortunately started most of the current right-wing campaigns that have become crazier over the years, was sufficiently shocked by the severe injury to his press secretary when an assassin had been aiming for--and hit, but far less lethally--Reagan himself that he was willing to at least let some reasonable gun legislation proceed.

Monday, February 4, 2013

Indulgence

I managed to skip all the day-long Super Bowl build-up shows Sunday but indulged myself Saturday by enjoying the movie Quartet.  If you haven't yet read about it, it's Dustin Hoffman's first directorial stint and it's all about retired opera singers. Oh, yes, they're all Brits.  Not exactly a prescription for a bang-up modern smash film. And yes, it's somewhat indulgent and not very wonderfully plotted. The famous soprano (Maggie Smith, naturally) gives in first by going to the musicians' retirement home and then finally agrees to join three old colleagues in presenting the Quartet from Verdi's Rigoletto as the finale in a benefit to save the home.

This could be a rather predictable sappy scene but the performances and the music, of course, save the day. The Scottish comic, Billy Connolly, provides most of the light relief and is charming as a rascally retiree, but the truly bravura performance came from Tom Courtenay, who's been notable for having been in precious few movies over the past decades.  He has aged very well and remains a terrific actor. In the movie, Doctor Zhivago, remembered best (by me, at least) for the wonderful presences of Julie Christie and Rod Steiger, seeing Courtenay at the end of the train as the first half ended remains one of the memorable cinematic images.

Unlike Les Miz, where the actors were required to sing for their suppers through the whole picture, no one expected these folks in Quartet to tackle one of opera's glories. Instead, the film slowly introduces strains of the piece in different versions beginning about halfway through the movie; then, as the four take the stage, you hear a famous recording play over the credits.  They show pictures of all the supporting cast -- many of whom were great singers or actors -- as they originally appeared and then just pictures of the real four singers you are hearing. However, you must stay through all the credits to watch the music listings carefully to catch the identities of the actual singers, who were no less than Luciano Pavarotti, Joan Sutherland, Sherrill Milnes. and Huguette Tourangeau.  And yes, I do have that recording, still marvelous to hear, even if on vinyl.

And then there was the Super Bowl, which turned out to be quite a contest. The 49ers came out cold, the Superdome proved to be a tarted-up high school gym that couldn't keep the lights on, and then the Ravens went into a daze after the delay. On the other hand, I give the Baltimoreans full credit for pulling a valiant four-down goal-line stand that cinched the game. And my only complaint about Ray Lewis is that for all his carrying-on with dancing and the like, much less his checkered past, he proved to be a shadow of his former mighty defense self in his last appearance on the field where, in the words of the Morning Telegraph cryptic racing reports, he was "not a factor"--well, for most of the time, it seemed.

Most of the vaunted commercials were desultory and the controversial ones hardly worth getting excited or upset about. The half-time show was as tedious as always--the NFL has a way of making every pop or rock star, from Bruce Springsteen to this year's Beyonce, seem boring. It took Janet Jackson and Justin Timberlake to wake up the echoes of show business a few years back.