Saturday, April 24, 2021

It Is Not "Shocking" To Ask Judges to Obey Governing Precedent: On Jones v. Mississippi (and Miller and Montgomery)

Earlier this week, the Supreme Court in Jones v. Mississippi ruled 6-3 that states can sentence juveniles to life without parole so long as the underlying state statute does not mandate such a sentence. While prior decisions (Miller v. Alabama and Montgomery v. Louisiana) suggested that juvenile offenders could only be sentenced to life without parole if they are "incorrigible", the Jones Court held that these precedents do not require the sentencing court to actually make any findings on that point. So long as the court had the discretion to consider the mitigating factors associated with youth, the constitutional mandates set out in Miller and Montgomery are satisfied. In Jones, the result of this holding is that an inmate who committed his crime at the age of 15 and whose conduct since incarceration has seemingly decisively proven that he is not incorrigible but in fact can and has reformed, will -- absent executive clemency -- spend the rest of his life in prison.

Justice Kavanaugh wrote the majority opinion -- the irony of him declaring it permissible to permanently expel a man from society for youthful wrongdoings was not lost -- and at the conclusion seemed to acknowledge that the rule he declared was harsh and perhaps even unjust to Jones. This made me think of my recent article "Sadomasochistic Judging", where I explored how judges acknowledge and lament the pain their rulings cause as a means of securing legitimacy for those rulings. Josh Blackman, though, was very unhappy to see Justice Kavanaugh make these allusions at all. "The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane."

I am on the record as being strongly in favor of judges making statements of this form, and I won't rehash all my arguments on the subject here. But I will make one point that might be an important clarification regarding my thesis in "Sadomasochistic Judging". One could mistakenly read my article and think I am criticizing judges for a form of hypocrisy or bad faith when they wring their hands about the seeming cruelties they impose. I'm not. The problem I articulate is that judges confuse the pain they wrought for proof of legitimacy, and so come to seek out painful rulings even when they're not legally compelled. Given how badly the Court butchers its legal reasoning in Jones (see below), I don't think its unfair to hypothesize that's part of what's happening here.

That said, assuming that we don't think judges will never have to mete out injustices in order to stay within the law -- and I don't think that -- then judges have to either acknowledge the injustices they enforce or ignore them. Choosing the latter may well replace "sadomasochistic judging" for plain old sadistic judging: judging where it is believed that the judges actively desire the pain they cause for its own sake, or are at least indifferent to it. That, I think, would be disastrous for the legitimacy of the courts. If Justice Kavanaugh (or any other justice) believes that his servitude to the law requires him in a given case to be a dealer of cruelty, the absolute least we can ask out of him is that he acknowledge what he's doing. This is not "virtue signaling" not "checking one's privilege" nor any of the other tired buzzwords Blackman attributes to Justice Kavanaugh. It is having his eyes open to reality.

But Justice Kavanaugh's nod to the human costs of his decision is not Blackman's only bone to pick. In a separate post he also takes aim at a particular line in Justice Sotomayor's dissent, one that he claims to have "shock[ed]" him when he read it. Here's the offending passage:

For present purposes, sentencers should hold this Court to its word: Miller and Montgomery are still good law. See ante, at 19 ("Today's decision does not overrule Miller or Montgomery"). Sentencers are thus bound to continue applying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect to Miller and Montgomery. In other States, the responsibility falls squarely on individual sentencers to use their discretion to "separate those juveniles who may be sentenced to life without parole from those who may not." Montgomery, 577 U. S., at 210. Failing to do so violates the Eighth Amendment. 

Huh? What is shocking about this? As Sotomayor observes, the Court explicitly upheld Miller and Montgomery. These cases are still good law. So yes, obviously lower courts are "bound to continue applying these decisions faithfully." That's vertical stare decisis 101.

Blackman explains his shock as follows:

Justice Sotomayor has opened an entirely new front in the battle over stare decisis: if the Roberts Court is unwilling to formally overrule a precedent, then lower courts should still follow those decisions "faithfully." Truly, this proposition is remarkable. Justice Sotomayor is inviting trial courts to engage in a judicial resistance of Jones. Yes, I used the phrase judicial resistance. Unless the Court is willing to bite the bullet and formally overrule the precedent, judges should still follow a rejected-reading of Montgomery and Miller. The antidote to stealth overruling is stealth underruling: lower courts should quietly fail to give a new Supreme Court precedent its fairest reading, in order to preserve a now-rejected reading of an older precedent.

Respectfully, I think this is the sort of passage a faithful exponent of constitutional interpretation can be legitimately shocked by. If the Supreme Court says flatly "we are not overruling, but rather applying, a precedent", lower courts absolutely should still follow those precedents "faithfully". It would be remarkable to suggest anything otherwise. To be clear, I don't deny that sometimes courts overrule cases sub silentio, or that long evolutions in law can make a prior precedent so anomalous that it seems to drop out of the doctrine and eventually ceases to be followed. But that's not what happened here. Jones did not ignore Montgomery and Miller, it did not even criticize them. It claimed to be faithfully applying them. The fairest reading of Jones is that it means what it says: Montgomery and Miller remain fully binding on lower courts.

In Blackman's defense, part of the problem here is that while Jones claims to be following Montgomery and Miller, it really makes hash out of both. In this, Justice Sotomayor (and Justice Thomas, I suppose), are correct -- the rule in Jones is ludicrous as a purportedly faithful application of these prior precedents. But nonetheless, the case says what it says, and lower courts are bound to take it at its word, which means they have to figure out how to harmonize Montgomery and Miller with Jones -- applying them all faithfully.

What does that mean? Montgomery told us that while "Miller did not impose a formal factfinding requirement", this "does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment." Justice Kavanaugh, in a show of tremendous bad faith, quotes the former part of the passage ad nauseum while ignoring the latter entirely save for a buried footnote. But again, lower courts have the holdings they have. There still is a distinction between "those juveniles who may be sentenced to life without parole [and] those who may not" -- language from Montgomery that Justice Kavanaugh says he is applying and enforcing in Jones.

The best -- possibly only -- way to harmonize Jones, Miller, and Montgomery is that sentencing courts are not permitted to "sentence a child whose crime reflects transient immaturity to life without parole" (Miller and Montgomery -- these are the juveniles in the "who may not" category), but that so long as the sentencing court is given discretionary authority to consider the constitutionally-mandatory mitigating factors (such as incorrigibility), it will be (irrebuttably?) presumed that they did consider such factors and determined they do not apply to the child if they decide to impose such a life-without-parole sentence -- even if the sentencing court makes no explicit or implicit findings on the question (Jones). This is no doubt why Justice Kavanaugh keeps stressing that what he's rejecting is a demand that sentencing courts make a "separate" factual finding of incorrigibility (in his opinion "separate", in relation to "factual finding", appears close to twenty times). The relevant "finding" is permitted to be and assumed to have been merged entirely into the court's declaration of the sentence -- no "separate" analysis, whether implicit or explicit, is required.

To be sure, the effect of Jones even read this way is to make Miller and Montgomery effectively unenforceable. But an unenforceable rule is still a rule, it just relies on the relevant actors to police themselves in adherence of it -- or put differently, .it requires that such actors behave "faithfully". 

Again, as a claim of being a mere application of Miller and Montgomery, Jones makes a mockery of legal reasoning. It does not apply the prior precedents, it hollows them out. So any attempt to harmonize these precedents is going to generate tension, because in terms of its legal reasoning Jones is barely better than gibberish. If there are portions of Jones which seem to suggest that lower courts are permitted to simply ignore the mandates in Miller and Montgomery, all that demonstrates is that Jones is at war with itself, and in particular the parts that swear up and down that Miller and Montgomery remain perfectly intact. Shoddy reasoning by SCOTUS leads to unclear guidance for lower courts.

Still, the Supreme Court in Jones could have overturned Miller and Montgomery. It didn't -- not just "formally", but explicitly. It was very emphatic that it didn't. Blackman's opening statement -- that "Going forward, Justice Kennedy's 5-4 progressive decisions should no longer be treated as precedential," even where they are not overturned, is not an option lower courts are permitted to indulge themselves in. Justice Kennedy's decisions, progressive or otherwise, 5-4 or otherwise, are precedential up to and until the Supreme Court says otherwise. 

Lower courts are not empowered to do the Supreme Court's wetwork for it. The lower courts' obligation is to follow all the active, binding precedents faithfully. What that means in this context, in practice, is that lower courts, when given the discretion to decide whether to sentence a juvenile to life without parole, are obligated to mete out such a decision only when it is compatible with the holdings set out in Miller and Montgomery, even if they know that thanks to Jones nobody will be looking over their shoulder to check on their work.

One final note. Blackman raises the following hypothetical, which he says is "invit[ed]" by Sotomayor's dissent:

Let's say a sentencer declines to sentence a juvenile defendant to LWOP because the defendant is not incorrigible. That decision can be baked into the broader element of "discretion." Could an appeals court reverse a sentence, because the Supreme Court held that incorrigibility was not required? Of course not. A factor may not be required, but a judge, in his discretion, can still consider that factor. In other words, sentencers can get away with ignoring Jones, and probably will.

This I think gets Jones entirely backwards. Miller and Montgomery set out some constitutionally-mandatory limits on when LWOP can be imposed on a juvenile offender. Jones says that the only constitutional enforcement-mechanism for these rules that the sentencing judge must be given discretion to consider the issue. If a sentencing judge, in using that discretion, determines that a juvenile defendant is not incorrigible and so declines to impose the LWOP sentence, that's doing exactly what Jones (and Miller and Montgomery) say she should be doing. If the judge believes the defendant is not incorrigible but acted with "transient immaturity" yet sentences him to life without parole anyway, defying Miller and Montgomery secure in the knowledge that Jones will insulate her decision from review, that's thwarting the logic of Jones (not to mention Miller and Montgomery). Ironically, such a judge would not even be reading Jones faithfully, to say nothing of Miller or Montgomery

Jones is predicated on the belief that, so long as the sentencing judge is given discretion to consider the constitutionally-mandatory factors "necessary to separate those juveniles who may be sentenced to life without parole from those who may not," the judge will consider these factors -- whether they make any "separate" findings or not. A judge who simply refuses to engage in that consideration, knowing that there's no possibility their exercise of "discretion" can be reviewed, is behaving in bad faith. And Justice Kavanaugh alludes to that very point in footnote seven, where he raises the possibility that "if a sentencer considering life without parole for a murderer who was under 18 expressly refuses as a matter of law to consider the defendant’s youth ... then the defendant might be able to raise an Eighth Amendment claim under the Court’s precedents." Of course, any judge who is not an idiot will quickly learn that if he wants to completely ignore the nominally mandatory requirement that they consider the factors related to the offender's youth before imposing LWOP, all he needs to do is say nothing -- an option the Court expressly endorses in Jones. This is why Jones renders Miller and Montgomery a practical nullity. But we could and should still say that a judge who did that -- who exploits the option the Supreme Court gives him to defy without consequence the rules set out in the Supreme Court's binding precedent -- is not acting "faithfully."

It is doubtful that such a faithless judge will be paused by Justice Sotomayor's dissent either, of course. And I can't even claim to be "shocked" that they won't be. But I perhaps still can be shocked to see a legal professional openly object to a judge's straightforward admonition that lower courts should apply precedents faithfully. Miller and Montgomery and now Jones are all binding law, and lower courts now are tasked to make something edible out of the hash that is Kavanaugh's majority opinion.

Thursday, April 22, 2021

Reflections on Being Victim of a Scam

Earlier this week, I bought a bunch of Lego sets that appeared to be on sale -- four "Star Wars" sets, and one "Harry Potter" set.

Yesterday, I realized that what I had actually done is fall for an internet scam. The website I bought from has already disappeared. I will not be receiving any Legos.

I've already disputed the charge and canceled the credit card I used. But it was an interesting experience, being a scam victim -- I think for the first time? -- and I wanted to share some of the thoughts I've been having.

To begin, I feel like falling for an internet scam is my decisive induction into being old. Even more than sore knees or a cantankerous attitude towards kids these days, there's no coming back from this. You get duped by an online sale, you're officially old. My only consolation is that, if I'm going to be the sort of old man who falls for online scams, at least those scams will involve Lego sets.

I found the (scam) site via a Facebook ad. I honestly don't know what to make of that fact. I admit that, perhaps naively, I assumed that ads on Facebook were from at least credible businesses, which is why I didn't initially harbor much suspicion about the sale. Was my assumption reasonable?  Did Facebook fail in its duties to me by putting that ad on its site? Or is it impossible for Facebook to effectively screen out the grifters and scam artists from its official, sponsored ads? I genuinely don't know. My instinct is that this reflects poorly on Facebook. I knew better than to click some banner ad on a random site that says "Lego sale!" For whatever reason, I believed that official, sponsored, promoted Facebook ads were more legitimate.

The site itself looked professional enough. The prices were pretty deeply discounted, but it looked like the sort of one day flash sale one often sees from normal online retailers -- that didn't actually raise any flags. If anything, I was more suspicious of the "base" price -- I figured that it was set artificially high so that the "sale" looked like a deeper cut than it was. In any event, it seemed like a good opportunity to buy a bunch of Lego sets which otherwise would be pretty expensive on the cheap, so I splurged. Type in my credit card number; give them my mailing address, and soon bathe in Lego.

I did get a receipt from the site, albeit a pretty vague one that didn't include any indication about when my items would ship or even what they were. It did tell me not to worry that the seller was listed as a person's name rather than the name of the website. These were my first red flags. Last night, I decided to log on to the website to check the status of my order, and wouldn't you know it but the website has disappeared without a trace.

That was the first point I thought "oh, I've been scammed." But that thought immediately pressed up against reflexive denial -- "no, this must be a mistake." What generated that thought? Partially, it was probably humiliation -- I didn't want to admit I'd been so easily duped. But the larger instigator, I realized, was something else: I really was excited about those Lego sets. If it was a scam, I wouldn't be getting the Legos. If I denied it was a scam, I could still think I would be receiving the Legos. Admitting I'd been scammed meant resigning myself to the fact that this thing I was happy and excited about would not come to be. And that was really, surprisingly hard. It felt like an affirmative choice to give up on happiness.

The power of that sentiment -- and the fact that it did have a hold on me even though the evidence that this was a grift job was overwhelming -- surprised me and made me pause to reflect. I suspect that something like this is true of anyone who's taken in by a con artist or a grifter, including a political con artist. One gets hooked initially because one likes what they're (claiming to be) selling. Bring back American jobs, laying low big business elites, draining the swamp -- take your pick. These goods get sold but are never shipped. And when they don't arrive, there is a strong instinct that it must be coming, it must be coming soon, it must be around the corner, because if you admit it's never coming -- oof. That's terrible, to cut the strings on hope. All the more so when what you're hoping for is something a lot more vital than a Lego set.

So yes, I can very much imagine people denying the evidence before their eyes; indulging in denial because it allows them to hold onto the happy, hopeful feeling that drew them to the grifter in the first place. It takes discipline and, in some ways, courage, to cut the cord and acknowledge "I was scammed. The goods are never going to arrive."
"There comes a point in every plot where the victim starts to suspect; and looks back, and sees a trail of events all pointing in a single direction. And when that point comes, Father had explained, the prospect of the loss may seem so unbearable, and admitting themselves tricked may seem so humiliating, that the victim will yet deny the plot, and the game may continue long after."

Wednesday, April 21, 2021

The GOP is Going To Get Worse Before It Gets Better

Here's my scary/controversial hypothesis of the day:

Right now, the national elected GOP is a moderating influence on the American conservative movement.
I say that fully accounting for folks like Marjorie Taylor Greene, Paul Gosar, Jim Jordan, Ted Cruz, Louie Gohmert, Josh Hawley, and Lauren Boebert. Even accounting for them, the nationally-elected GOP cadre, taken as a whole, is more moderate than the overall American conservative movement. Which is terrifying, given just how radically extreme the nationally-elected GOP cadre is (see the above list). The reason it's a scary hypothesis is precisely because the current national elected GOP should never be a moderating influence on anything. It is a party utterly and completely out-of-control. And yet, when you compare them to the people they're representing -- oh boy, can it get even worse.

The Republican caucus flirts with just abandoning democracy outright, the Republican base has already signed the prenup. The Republican caucus contemplates creating a new "Anglo-Saxon" caucus, the Republican base thinks the absence of one is the greatest civil rights travesty of our time. The Republican caucus tip-toes around whether George Floyd was murdered, the Republican base would call Derek Chauvin's conviction a lynching except that might suggest they admire it.

We are, in short, nowhere near rock-bottom. Party officials aren't always 100% aligned with the rank-and-file, but the latter certainly exhibits a strong gravitational pull on the former. The pull on the GOP is to move even further to the right than it is now. We're going to see more persons who to any sane observer would be seen as rock-ribbed conservatives be primaried out, or retired and replaced, by open and avowed extremists. We're going to see more ambitious GOP pols try to separate themselves from the back by going deeper and deeper into the rabbit holes of open racism, White supremacy, antisemitism, and conspiratorial authoritarianism of all stripes.

It's going to get far worse before it gets better.

Sunday, April 18, 2021

Margin Call Review

A few days ago, my wife and I watched Margin Call. It's a movie I had oddly never heard of until last week -- oddly, because it got very strong reviews and had a pretty glittering cast including Kevin Spacey, Jeremy Irons, Demi Moore, Stanley Tucci, and Zachary Quinto.

Margin Call is set over roughly 24 hours at a nameless Wall Street firm that understands the economy is slowing down and is in the middle of massive layoffs. After the head-chopping is complete, a young analyst (Quinto) realizes that his now-former boss (he was among those laid off) was on the cusp of discovering a massive flaw in the firm's risk exposure model. Basically, one bad day (and plenty of bad days appear to be coming) and the firm could go entirely bankrupt. The rest of the movie takes place over roughly the next 24 hours, as the powers-that-be in the firm race to figure out how to liquidate their toxic position before the music stops and save the company.

Notice I didn't add "without crashing the economy." The economy is going to crash -- that's a given. The only question is who will tip the first domino, and the logic is that if the firm is the one to set off the panic, it will incur the least in the way of losses. There isn't much in the way of remonstrating that the firm, insofar as it is significantly responsible for the coming economic crisis, should be the one to face the consequences.

I've been reading over the past few days about the problem of "bad coherence" -- where a system hangs together and makes internal sense, and all the players' decisions are justifiable and sensible within the broader architecture of the surrounding structure, but because the structure itself is toxic justifiable, sensible, and reasonable decisions are morally terrible. Margin Call does a wonderful job illustrating that problem. One reviewer said, and I agree, that the film is significantly stronger because of how it doesn't moralize -- there are little in the way of "greed is good!" speeches or mustache-twirling about how they're the kings of Wall Street and the peasants can get wrecked.

To the contrary, the firm's internal functioning is in some ways admirable if one forgets what it's in service of. The relatively junior analyst who discovers the problem isn't met with a lot of chest-thumping about how he's just a kid and who-does-he-think-he-is -- his bosses (all the way up to the CEO) take him seriously and pretty rapidly react to the problem as a problem. There's no shooting of messengers. The firm certainly views all of its cogs as expendable, but it can get away with it because if the cogs agree to be expended they know they'll be handsomely rewarded and if they try to maintain their dignity in any way they'll be crushed. The closest thing the film has to a comedic through-line is the company's desperate attempts to find Quinto's old boss, who they just laid off (and whose phone they unceremoniously shut off) -- not to apologize, but so that they can pay him an obscene sum of money to sit quietly in a room for the next day and not spill the beans about the "problem" and thus ruin the firm's liquidation strategy. He initially doesn't want to cooperate -- not because he actively wants to screw the firm, but he certainly isn't in the mood to do them any favors either. But eventually he yields, because the choice is between getting a ton of money for doing nothing (when he's just lost his job) or having the firm blow up his entire severance and healthcare package. Some choice.

Hell, even when it came to how they handled the layoffs, my wife basically whistled and called it "textbook".

But the result, again, is mostly "rich people stay rich and avoid consequences". Plenty of people at the firm will lose their jobs, but they're mostly lower-level grunts who -- again -- are receiving giant cash payouts if they agree to pay ball. The surrounding economy is going to enter a crisis, but that's accepted as part of business -- economies sometimes crash, the feeling goes, and there's no profit in going down with the ship. The film relentlessly constructs a vise where any opportunity for anyone to display a little personal dignity, or pro-social tendency, is shown to be ultimately futile and counterproductive -- and it does it without marking any of the characters as sociopaths. An impressive feat indeed.

Anyway, I highly recommend this movie. It's a tight, quiet thriller that deserved more attention than it got (or maybe it got plenty of attention and I'm just oblivious. Either way).