ALWAYS BET ON THE DEEP STATE:

Using Math to Analyze the Supreme Court Reveals an Intriguing Pattern (SARAH ISGUR and DEAN JENS, 06/02/2024, Politico)

Here are some patterns from the Supreme Court’s last term that might surprise you. About 50 percent of the court’s cases were decided unanimously. Only five of 57 cases — just 8 percent — were decided 6-3 with the six Republican appointees all on one side and the three Democratic appointees on the other. Ninety percent of the 57 cases were decided with at least one liberal justice in the majority. Kavanaugh, Roberts, and Barrett were all in the majority over 90 percent of the time, while Justices Jackson, Sotomayor, and Kagan were all more likely to be in the majority than either Samuel Alito or Clarence Thomas. The three liberal justices voted together in fewer than a quarter of the non-unanimous cases, and the six conservatives voted together only 17 percent of the time.

SOLA SCRIPTURA:

Judge: Qualified Immunity Is an Unqualified Disaster: The police-protecting doctrine is legally baseless, costly, and liberty-eroding. (CLARK NEILY, MAY 28, 2024, The Bulwark)

As Judge Reeves explains in his May 20 opinion denying qualified immunity to a Jackson, Mississippi detective who helped frame an innocent man for murder, there are so many problems with that doctrine that it’s hard to know where to start.

First and most fundamentally, the judiciary’s job is to apply law, not make it. And yet, in a blatant act of judicial policymaking, the U.S. Supreme Court read into the nation’s premier civil rights law, 42 U.S.C. §1983, the defense of qualified immunity despite the fact that the statute itself makes no mention of any immunities whatsoever. Judge Reeves notes how absurd it is to suppose that the 1871 law, which was designed to protect newly freed African Americans in particular from the predations of badge-wearing Klansmen and other tyrannical government officials, would have included a defense so broad as to entirely defeat the law’s unambiguous purpose. It makes no sense.

Second, Judge Reeves notes the practical consequences of qualified immunity, which include a free pass for a cop who shot an innocent boy in the leg from eighteen inches away while blazing away at a non-threatening family dog; letting a jailer off the hook who stood and watched without calling 911 as a suicidal prisoner hanged himself with a telephone cord inside his own cell; and finding no “clearly established” right not to be locked up “in a frigid cell, covered in other persons’ feces and forced to sleep naked in sewage” for six days because the only case on point held that “prisoners couldn’t be housed in cells teeming with human waste for months on end.” (The latter case was so obviously wrong that the Supreme Court summarily reversed without briefing or argument.) Another practical consequence according to Judge Reeves is the perpetuation of racial inequality. He notes that black Americans are more frequently subjected to stops, searches, arrests, and lethal force than other Americans, and “qualified immunity then bars many of these individuals from securing justice” when their rights are violated.

It’s activism when the Right ignores Originalism too.

TURNING SOFT:

Hit Man: Gary Johnson is the most sought-after professional killer in Houston. In the past decade, he’s been hired to kill more than sixty people. But if you pay him to rub out a cheating spouse or an abusive boss, you’d better watch your own back: He works for the cops. (Skip Hollandsworth, October 2001, Texas Monthly)

On a nice, quiet street in a nice, quiet neighborhood just north of Houston lives a nice, quiet man. He is 54 years old, tall but not too tall, thin but not too thin, with short brown hair that has turned gray around the sideburns. He has soft brown eyes. He sometimes wears wire-rimmed glasses that give him a scholarly appearance.

The man lives alone with his two cats. Every morning, he pads barefoot into the kitchen to feed his cats, then he steps out the back door to feed the goldfish that live in a small pond. He takes a few minutes to tend to his garden, which is filled with caladiums and lilies, gardenias and wisteria, a Japanese plum tree, and rare green roses. Sometimes the man sits silently on a little bench by the goldfish pond, next to a small sculpture of a Balinese dancer. He breathes in and out, calming his mind. Or he goes back inside his house, where he sits in his recliner in the living room and reads. He reads Shakespeare, psychiatrist Carl Jung, and Gandhi. He even keeps a book of Gandhi’s quotations on his coffee table. One of his favorites is “Non-violence is the greatest force at the disposal of mankind. It is mightier than the mightiest weapon of destruction devised by the ingenuity of man.”

He is always polite, his neighbors say. He smiles when they see him, and he says hello in a light, gentle voice. But he reveals little about himself, they say. When he is asked what he does for a living, he says only that he works in “human resources” at a company downtown. Then he smiles one more time, and he heads back inside his house.

What the neighbors don’t know is that in his bedroom, next to his four-poster bed, the man has a black telephone, on which he receives very unusual calls.

“We’ve got something for you,” a voice says when he answers. “A new client.”

“Okay,” the man says.

The voice on the other end of the line tells him that a husband is interested in ending his marriage or that a wife would like to be single again or that an entrepreneur is ready to dissolve a relationship with a partner.

The man hangs up and returns to his recliner. He thinks about what service he should offer his new client. A car bombing, perhaps. Or maybe a drive-by shooting. Or he can always bring up the old standby, the faked residential burglary.

As he sits in his recliner, his cats jump onto his lap. They purr as he strokes them behind their ears. The man sighs, then he returns to his reading. “Always aim at complete harmony of thought and word and deed,” wrote Gandhi. “Always aim at purifying your thoughts and everything will be well.”

MOONSTRUCK:

The Hotel Guest Who Wouldn’t Leave: Mickey Barreto’s five-year stay cost him only $200.57. Now it might cost him his freedom. (Matthew Haag, March 25, 2024, NY Times)

Much of Mr. Barreto’s story is corroborated by years of court records, but one crucial moment comes from only his account: On that first night, he settled into his room, high above Midtown, along with his partner, Matthew Hannan. Before that night, Mr. Barreto says, Mr. Hannan had mentioned, in passing, a peculiar fact about affordable housing rules that pertain to New York City hotels.

With their laptops open, he claimed, they explored whether the New Yorker Hotel was subject to the rule, a little-known section of a state housing law, the Rent Stabilization Act.

Passed in 1969, the law created a system of rent regulation across the city. But also subject to the law was a swath of hotel rooms, specifically those in large hotels built before 1969, whose rooms could be rented for less than $88 a week in May 1968.

According to the law, a hotel guest could become a permanent resident by requesting a lease at a discounted rate. And any guest-turned-resident also had to be allowed access to the same services as a nightly guest, including room service, housekeeping and the use of facilities, like the gym.

The room becomes, essentially, a rent-subsidized apartment inside a hotel.

Despite the reasonable assumption that what he was undertaking had been orchestrated from the start, Mr. Barreto claimed the idea only took shape when his and Mr. Hannan’s online search stumbled upon the 27th line of a 295-page spreadsheet titled “List of Manhattan Buildings Containing Stabilized Units.”

According to court documents, Mr. Barreto left his room the next morning, rode the elevator to the lobby and greeted a hotel employee at the front desk. He handed over a letter addressed to the manager: He wanted a six-month lease.

The employee dialed the manager, and after a brief exchange, Mr. Barreto was told there was no such thing as a lease at the hotel and that without booking another night, he would have to vacate the room by noon. The couple did not remove their belongings, so the bellhops did — and Mr. Barreto headed to New York City Housing Court in Lower Manhattan and sued the hotel.

In a three-page, handwritten affidavit dated June 22, 2018, Mr. Barreto cited state laws, local codes and a past court case in arguing that his request for a lease made him a “permanent resident of the hotel.” Removal of his items amounted to an illegal eviction, he said.

At a hearing on July 10, in the absence of any hotel representatives to oppose the lawsuit, the judge, Jack Stoller, ruled in Mr. Barreto’s favor. Judge Stoller not only agreed with his arguments; he even cited the same case law as Mr. Barreto and ordered the hotel “to restore petitioner to possession of the subject premises forthwith by providing him with a key.”

Mr. Barreto returned to Room 2565 within days, now as a resident of the hotel — and soon, as its new owner.

SNOWFLAKES MELT:

The Crisis in Teaching Constitutional Theology (lee j. strang, 3/20/24, Law & Liberty)

I was surprised by Jesse Wegman’s essay, “The Crisis in Teaching Constitutional Law,” which purports to show that a newly “politicized” Supreme Court has exploded the possibility of teaching the foundation of our legal system. I hadn’t experienced a crisis teaching constitutional law and, to be honest, I was also a little embarrassed for my profession by some of the over-heated rhetoric by faculty Wegman interviewed. One of the interviewees even succumbed to sobbing: “While I was working on my syllabus for this course, I literally burst into tears.” The reason? “I couldn’t figure out how any of this makes sense.”

I haven’t had that problem; I haven’t cried even once while writing my syllabi, and it’s not for lack of teaching constitutional law. I have been teaching US constitutional law, constitutional interpretation, and Ohio constitutional law, since 2005, and I co-edit a casebook Federal Constitutional Law, so I’m familiar with what it takes to teach constitutional law. My primary pedagogical goal is to give my students the knowledge and tools they need to effectively advocate on their clients’ behalf. This body of knowledge includes the key cases and the doctrines that govern discrete areas of law, and the tools include the conventional building blocks of constitutional interpretation, such as textual, structural, and precedential arguments. I continue to do so four times a week this semester without any significant difficulty, and certainly without any greater difficulty compared to twenty years ago when I began teaching. […]

Wegman’s evidence supporting the purported crisis is exceedingly thin. At one point, Wegman complains that “these justices have moved quickly to upend decades of established precedent.” It’s not clear if Wegman is lamenting both the alacrity and the overruling of precedent, but even if it is both, it’s hard to take this “crisis” seriously, at least in context of the broad sweep of American history. Anyone who has taught one of the Warren Court’s many areas of doctrinal innovation knows that today’s Court is no more innovative than prior Courts. Moreover, as someone whose goal it is to teach all cases—including those challenging ones authored by Chief Justice Warren—charitably, I can confirm that any difficulty in teaching Bruen, Students for Fair Admissions, and the others Wegman complains of pales in comparison to the herculean task of painting Miranda v. Arizona (1966), as a good-faith interpretation of the Fifth Amendment.

MAKE RIDERSHIP FREE:

Flooding NYC’s subways with police cost millions — and didn’t fix anything (Marisa Kabas, 12/28/23, MSNBC)

If you’d like to visit a New York City public library on a Sunday, you’re out of luck, thanks to recent city budget cuts. But if you’d like to see a subway station crawling with cops (including the PR-friendly robot variety), the possibilities are bountiful. This is life in Eric Adams’ New York.

In 2022, amid concerns about rising crime in the city’s transit system, New York Gov. Kathy Hochul and New York City Mayor Eric Adams took the idea of “defund the police” and flipped it on its head. They dreamed up a strategy of “the three Cs” — “Cops, Cameras, Care” — which Hochul announced in October last year. What if, they imagined, we added more than a thousand uniformed police officers to patrol the subway every day and paid them much more — millions more? Now, one year later, city records show it led to a $151 million increase in NYPD overtime pay, a negligible decrease in crime and a vast increase in fare evasion tickets and arrests of people of color.