Month: January 2018

Slouching Toward Oligarchy

Slouching Toward Oligarchy

Slouching Toward Oligarchy


Shortly after the current Supreme court term opened in October, Chief Justice John Roberts used the term “Sociological Gobbledygook” during oral argument on a Gerrymandering case.  Under the “political question doctrine,” drawing district lines for seats in Congress has traditionally been reserved to state legislatures. However, rather than fight the gerrymandering at the polls or in the halls of the legislature, interest groups sought the intervention of the federal courts. Why? Because it is easier than going to through the democratic process.   Especially, if you prefer government by federal judges, who with each passing day evolve more and more into a class of unelected, unaccountable oligarchs.


The Chief Justice said to the attorney arguing the case, “…the whole point is you’re taking these issues away from democracy and you’re throwing them to the courts pursuant to . . . I can only describe as sociological gobbledygook.”  A short time later, Justice Stephen Breyer used the same term urging the advocate to press his argument “without going into what I agree is pretty good gobbledygook.”


Justice Robert’s comment generated a number of scathing reactions from across the Social Science industry.


Some of the responses were thoughtful defenses of using social science in legal cases while others were over the top denunciations of anyone who would dare question the underpinnings of so-called social science.


The exchange shined a light on a larger question.  Just how much should the courts rely on social theory or social studies in fashioning their decisions?


The Starting point is usually Brown vs. Board of Education.  For most of us in the legal profession the opinion is the lodestar, the standard for great and momentous decisions.  The case led to the dismantling of institutionalized racism in Education by overruling Plessy v Ferguson, the infamous 1896 decision upholding the “separate but equal” doctrine.  And the court in Brown justified its conclusion that segregation of the races in the classroom had long term detrimental effects on minority students by relying on social studies that had reached that conclusion.


In the subsequent years and modernly at an accelerating pace, many case decisions of the Supreme Court, some of them momentous, relied on social studies.  I tend to think that the term “social studies” is more accurate than “social science.”  Though there are plenty who will argue the opposite, the fact of the matter is there is little that is empirical or universally true in the subjects covered. The fact of the matter is there are no eternal verities in social studies.  Even the venerable Brown v Board of Education decision is being hollowed out by gender and ethnic based studies on college campuses, which exclude and denigrate other races and genders.   It seems segregated housing is all the rage,  evenexcluding people of a certain race from the campus itself for special days ostensibly to add to the comfort level for minorities.  In fact, a college in the Ivy League no less, just agreed to build housing where students can be separated based on sexual orientation.  The fact that this re-segregation is promoted by liberal professors and students doesn’t change its nature.


Other social studies fields can be just as problematical, especially modernly.  History studies are more driven by trendy thought, political correctness, and rank speculation then actual provable fact.  Psychology, while it undoubtedly can and does help individuals with mental or emotional problems, when applied to broader society can be a joke. As a trial lawyer who specialized in trying homicide cases for 7 years,  I found there was great fun in cross-examining defense psychologists. They literally started squirming in their seats when they found I intended to test their conclusions using their own diagnostic texts, especially in demonstrating how often what is and is not a symptom of a dysfunction is arrived at by a majority vote of committees.


And in some fields, studies and reports are so blatantly driven by political agendas as to be laughable were they not used in such serious ways. As a prosecutor I can’t tell you the number of times that some misleadingly named justice foundation issued a study on the justice system that was inaccurate, poorly researched and sometimes intentionally misleading.


And what’s more, the press was often complicit in the perpetuation of the fraudulent theories.   They regularly allowed the “institute”, or the “foundation” to “embargo” the report until the “go “was given for publication.  The Press knew that the embargos were imposed to get the maximum coverage with a minimum of critical examination.  By the time the study could be analyzed, and even obvious errors pointed out the media had lost interest.  They uniformly failed to publicize corrections.  Not exactly the peer-review you would expect of real science.


The question is not necessarily whether social studies should be relied on, but what weight should be given them.  To say that a teenager’s brain is not fully formed, and their judgement is not fully developed is one thing, but to say then they are not fully responsible for the premediated torture murder of a child is something beyond the realm of social science.  Yet we see more and more decisions based on such nebulous values as “societies evolving sense of decency.”  They lead to federal courts imposing their own values regarding the death penalty for certain classes of individuals, changing the institution of marriage, and making their evaluations of what is necessary for national security when they are singularly unqualified to make such judgements.  Those are the matters that the Constitution contemplates being decided by the Congress and the Presidency who, in a democracy, are accountable to the voters.


A recent column by the venerable Dan Walters makes the point about misplaced reliance on social studies very clearly.  He relates that how in 1986, a powerful California state legislator had a pet theory that one answer to rampant crime, educational failure and many other social ills was a lack of self-esteem.  John Vasconcellos, the legislator, was successful at directing tax-payer funds to the University of California for a study.  Two years later the study was released. Its conclusions were dutifully and breathlessly reported by the press.  The report concluded that indeed promoting self-esteem would have positive effect on correcting these societal ills.  Of course, then colleges, high schools, and grammar schools, based on the UC study changed curriculums. They hustled to adopt self-esteem programs.  Other government and private entities did the same.  But there was a problem.


It was recently uncovered that the real conclusions of the study were actually just the opposite.  It was concluded that “the association between self-esteem and it’s expected consequences are mixed, insignificant or absent.”  It turns out The University of California suppressed the real findings and changed the conclusions to satisfy the desires of the powerful Mr. Vasconcellos, whom they feared would make moves to reduce their annual budget.


I don’t doubt that the Supreme Court will still find social studies useful both in the case on gerrymandering and other issues.  But it behooves them in deciding an over-arching question of law and society that they treat the studies with a healthy skepticism.  Some social studies may be valid.  Others may be just so much pre-determined and paid for Gobbledygook.




Privacy Continued

Privacy Continued

Another case on the Frontiers of the Privacy concept.


In another context we have a case that was just argued to the Ninth Circuit Court of Appeals.  Since it’s the Ninth, we can’t tell what the outcome will be except that what is healthy and good for larger society will not be a major consideration of most justices occupying that bench.


This case involves a disabled male who wished to procure the services of a prostitute in the privacy of his own home and three former sex workers who wished to satisfy his desires.  Seems reasonable enough.  Except for a troublesome state law that specifies Prostitution is a crime. One can go to jail for soliciting a prostitute or engaging in sex for money.


It’s always interesting to see who files Friend of the Court briefs in such cases.  Of course the ACLU supports overturning the prostitution statue, but so does Black Women for wellness, the California Women’s Law Center and even something called Children of the Night.  No doubt the women in these organization would march against any man who boorishly pats their fanny or puts his hand on their knee, but think nothing of defending the exploitation of women by pimps, drug dealers and gang members.


And then there is the moral underpinning of the law.  Not so much a consideration in a society increasingly proud of its secularlism.


Oh well, so how did we get here?


Let’s look at a couple cases on Privacy of sexual relationships.


In 2003 the Supreme Court decided Lawrence v. Texas.  Justice Kennedy wrote the majority decision (6-3) which held that a law which permitted heterosexual sodomy, but banned homosexual sodomy was unconstitutional under the Fourteenth Amendment’s Due Process clause.  It was found to deprive persons of a fundamental liberty to make decisions regarding adult, consensual, and private sexual activity.  It is a landmark decision and since its publication it has been used to challenge a whole host of governmental regulations.


Justice Scalia writing in dissent pointed out a fundamental problem with relying on a court decision to change rules and regulations governing society.  He carefully argued that while he is not adverse to gay rights, it is not a proper role of the courts to change the rules.


He said, “Let’s be clear I have nothing against homosexuals or any other group, promoting their agenda through normal democratic means.  Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. . .  But persuading one’ fellow citizens is one thing, and imposing ones’ view in absence of democratic majority will is something else. . . (as by) the invention of a brand new “constitutional right” by a Court impatient of democratic change.   It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress”; and when that happens, later generations can repeal those laws, but it is the premise of our system that those judgements are to be made by the people, and not be imposed by a governing caste that knows best. . . “


This defining debate continued on in the Obergefell v Hodges cases decided in 2015.  Again, the majority decision (5-4) was written by Justice Kennedy and found the right of same sex couples to marry was a fundamental liberty protected by the Fourteenth Amendment Equal Protection and Due Process clauses.  Justice Kennedy’s words are echoed in the cases by both sides of the argument.  He said, “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”


In a similar vein he wrote “that the nature of injustice is that we may not always see it in our own times.  .  . and so we entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning.”


Justice Scalia, again in dissent does not quarrel with the concept, but only with whether it was left to future generations of citizens to exercise their democratic prerogatives or future generations of judges who would decide for the rest of us. He wrote “Today’s decree says that my ruler and the ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court . . . With each decision of ours that takes from the People a question properly left to them – with each decision that is unabashedly, based not on law, but on the “personal judgement” of a bare majority of this Court-we move a step closer to being reminded or our impotence.”


And he means by that at some point, the Supreme court will face a harsh reminder that the judiciary is indeed the weakest branch of government with neither the power of arms or the purse.  He clearly sees a danger in the “hubris” of the court.


If you are a member of a group being denied the same rights as other citizens, how patient must you be and for how long must you be?  It’s hard to truly appreciate how our fellow citizens feel, unless you are a member of that group.  On the other hand, what of democracy?  Slow, plodding, inefficient democracy?  Do we believe in it or not?


Returning to the Prostitution case, the sides argued a plethora of “liberty” issues may be involved, all the way from freedom of association to privacy of relationships.  They asked can there be such a thing as privacy of relationships  when there is money on the table or I guess you could say “skin in the game.”  (Pardon the pun). But the ultimate question is whether these matters are for the people to decide through their elected representatives or is up to the court to overturn a law criminalizing conduct that has been against the laws of most states (though not all) for the life of the republic.  Who gets to decide?


We are still working it out.





January 9th 2018


President Trump today, left a few mouths hanging open when he made a seemingly offhand comment about bringing back Earmarks. Not the first time he has expressed an idea that at first shocks, but upon sober reflection turns out to be worth discussing.


Recently, the Tulare County Sheriff and District Attorney held a news conference on a major case involving cattle, fraud and a number of other charges against a person who victimized a number of ranchers and agricultural interests.  What few people realize is that the Ag Crimes unit responsible for bringing this person to justice would not exist without the earmark procedure both at the state and federal level.  


The rural crime task force grew out of a proposal I wrote a couple of decades ago and presented to Chuck Poochigian (who now serves on the appellate court, but years ago was the appropriations chair for the State Assembly.) Chuck carried the funding bill, specifically earmarked for Tulare County, and placed it in the state budget.  Thereafter, even though Chuck’s party lost control of the Assembly, Governor Pete Wilson continued each year to include the appropriation in the state budget he sent to the legislature.  It was that earmark that funded the investigators in both the Sheriffs office as well as the District Attorney’s office.  It also provided for prosecutors and support staff in the District Attorney’s office.


The program was successful and our next goal was to export it to surrounding counties.  To accomplish that I traveled multiple times to Washington D. C. On more than one occasion I was accompanied by supervisors Jim Maples and Bill Sanders.  Congressman Bill Thomas, who at the time was chairman of the House Ways and Means Committee fashioned an earmark that allocated well over a million dollars to the Tulare County District Attorney’s office specifically to create a multi-county agricultural crimes task force using high technology (for the time) to protect the Ag industry. That’s exactly what we did and the funding continued for a number of years.


And it worked.  Still does.  


Then came the movement to eliminate earmarks.  Because of the experiences I just described,  I always had ambivalent feelings about doing away with earmarks.  I remember arguing our case to legislators both at state and federal level as well as to their committee staffers, that the Ag industry sent plenty of taxes in to the government every year, but given the unique nature of trying to protect vast acreage and live perishable products, both plant and animal, we couldn’t effectively protect our farmers and ranchers with the level of funding we could provide at the local level.  


Were there abuses of earmarks?  I’m sure.  But for our county they did a lot of good. And the legacy of what was created using earmarks continues to protect a vital industry.   


A couple,of,other points.  It wasn’t some disconnected administrative technicians deciding what we needed.  Our own representatives, the ones we elected, did.  And when you have legislatures debating, and, yes, maybe trading programs to benefit their constituents perhaps there would be more reason to work together and there might be less polarization.


Earmarks?  Wouldn’t hurt to take another look.