Many years ago – about, say, thirty – I ran into Michael black, QC, later Chief Judge on the Federal Court, walking up William Street, with his red bag, looking a little disconsolate.
Where are you off to, Michael?
Off to the High Court to get bashed up.
I’m for the Commonwealth. They want to amend their defence out of time to plead the Statute of Limitations in a case arising from a notorious naval accident.
Commiserations, Michael. May the Lord make his face shine upon you….
We then discussed the betting at the bar table about who would be the first to say ‘Hard cases make bad law.’ Michael and the Commonwealth did get bashed up – so badly that people are still trying to work out the juristic rationale of the decision.
Well, you hear this kind of chatter every day among barristers. ‘I’m for a bank against a widow today. Guess who is going to win?’ But it is just badinage – and if taken seriously, it represents the archetype of prejudice, the prime form of intellectual cancer that can obliterate any notion of a fair trial – in fact or in appearance, or both.
Let me give an example. About the same number of years ago, I heard a tax case where the Crown was struggling to hold on to an assessment against a widow who, as I recall, was frail. As counsel commenced to cross-examine her, I recall thinking that this might get ugly – as they say in the NRL. I can’t remember the detail, but I recall that counsel, who later acquired a reputation for being seriously hard as a magistrate, slowly, softly and politely demonstrated that the lady had a bad case. He had in short over-run my prejudice against his case.
In criminal cases, we are used to the notion that the accused gets the benefit of the doubt. Is there a similar process in civil cases? Well, if there is, it is not one that is often articulated – unless you have someone of the standing and intellectual fire-power of Lord Devlin (in a passage I referred to a little while ago).
Trial by jury is a unique institution, devised deliberately or accidentally – that is, its origin is accidental and its retention is deliberate – to enable justice to go beyond that point [the furthest point to which the law can be stretched ]…The fact that juries pay regard to considerations which the law requires them to ignore is generally accepted…It is, for example, generally accepted that a jury will tend to favour a poor man against a rich man: that must be because at the bottom of the communal sense of justice there is a feeling that rich man can afford to be less indifferent to the misfortunes of others than a poor man can be.
But it is also a fact of life that some judges seem at least to be better for you if you are for the plaintiff in a civil case or against the Crown in a criminal case. The author of Supreme Inequality, Adam Cohen, would not I think object to being described as one of that persuasion. He is a liberal of the NYT kind. The thrust of the book is that while the Warren court was firmly of that persuasion – if you are bent on labels, try ‘liberal’ or ‘progressive’ – the reaction since has been firmly in the other direction – say conservative.
In truth, Mr Cohen says that the U S Supreme Court has bent too far against the poor and civil rights and too far in favour of big money and big corporates. The picture is not a pretty one. Mr Cohen has what Helen Garner might call an agenda, but does this mean that he cannot be relied on? Well, read the book yourself and make up your own mind. One thing is clear – the book is written in clear terms that avoid jargon – to the point of calling amicus briefs ‘friend-of-the–court’ briefs, and foregoing quoting slabs of judgments (which too many of our judges are guilty of doing).
Mr Cohen is qualified as a lawyer, but he practises as a journalist – to the everlasting betterment of his readers. The book is to me devoid of the type of padding and ascription that disfigures so much North American scholarship. It is a book that both lawyers and non-lawyers can read and enjoy. And learn from.
Two things are likely to hit Australian lawyers between the eyes when they read this book. The first is the ghastly repetition of the call that the court split five to whatever ‘along ideological lines.’ The very idea is anathema to us. People who should know better might like to play party games about clusters on our High Court, but we will all walk the plank the day we hear that the High Court split along ideological lines, the conservatives appointed by the Coalition against the progressives appointed by the Labor Party. (There is apparently at least one think tank here who thinks that may have occurred already, but they are away with the birds.)
Secondly, and relatedly, too many of the Supreme Court’s rulings read like arguments rather than judgments. Too many read as if they have been the product of bargaining – which many of them have. The present Chief Justice told his confirmation hearing ‘I will remember that it’s my job to call balls and strike, and not to pitch or bat.’ His Honour may have had in mind the analogy of Maitland with the cricket umpire – his job is just to answer the question ‘How’s that?’
Well, to continue the analogy, too many of these judges take to the bowling with a long handle. And we may fairly fear that this is because too often the writer is coming from his or her own very distinctive position in the dug-out. It is very hard to imagine some of these judges approaching issues with a clean sheet. To my mind the worst offender – and I do not resile from the word ‘offensive’ – was the late Justice Scalia. Because this book is light on chapter and verse, you do not see much of it, but elsewhere I said of the decision in Heller about guns:
Two things may be said immediately of the majority judgment. First, it is one of those judgments that leaves you wondering how the contrary view may even have been put. It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge. If you did not know better, you might have suspected that its author entered upon the case with his mind made up. The judgment has the shrill, combative tone of the high school debate. Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly. The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’. In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it. Some asides are just plain bitchy. ‘Grotesque’ is deployed for effect in a one word sentence. In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary). This is five Justices describing the reasoning of the other four Justices.
It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court. I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it.
It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other. More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers……
The Supreme Court could have avoided this decision on handguns. The ‘right’ was never universal. It related to the militia which has nothing to do with handguns or personal self-defence. The English had already taken handguns off the table. But some policy demon drove the Court backwards. This failure of the Supreme Court to slay or tame the dragon in the cave was not just a failure of legal scholarship and judicial technique – it was a failure of moral courage and intellectual leadership.
When you read stuff like that from people who should know better, the breakdowns in other parts of the fabric – say, the Presidency – become less shocking. Has the ordure of the Wild West permeated One First Street, Washington, D C?
One disaster of the Court was the decision about campaign financing in Citizens United. The notion that spending money was an act of speech – yes, you guessed it: money talks – started with a ninety minute attack ad on Hillary Clinton – ‘the closest thing we have in America to a European socialist’- and opened the way to an orgy of venality that just reached its apogee in the attempt by Michael Bloomberg to buy the White House – just as the Romans were wont to auction the purple. In the result, freshmen to Congress are now told to expect to do about four hours a day on financing – a capitol mostly made up of male tarts.
Bush v Gore still haunts both sides. Would Trump or McConnell have copped it so sweet?
The five conservative judges who stopped the voting were not only choosing the next president –they were ensuring that the conservative court that Nixon had established in 1972 lived on into the twenty-first century.
If that comment is fair, it bears dwelling on. A critical component of the electoral success, such as it was, of the current occupant of the White House lay in his promise, which he is keeping, of delivering appointments to the Supreme Court that will be celebrated by the infamous ‘base’.
One of the cases that Mr Cohen says was adverse to the workers was reversed by an act that passed the House 381-38 and the Senate 93-5.
A generation or so ago, the courts lent in favour of mediation and arbitration. One senior judge said that ‘private judging is an oxymoron, because arbitrators are businessmen. They are in this for money.’ One survey said that 94% of decisions sided with business. This is a tool for secrecy and open to the same abuse as non-disclosure agreements.
You get the impression that sometimes the Justices just make it up as they go. If Miranda gave you the right to have counsel, what good was that if you get someone in forensic nappies on a murder charge? In Kentucky, one quarter of the prisoners on death row had lawyers who were later disbarred or resigned to avoid disbarments. One observer said ‘A majority on the Court is unwilling to overrule Miranda; however, a majority is also unwilling to take Miranda seriously. The Americans have been much firmer than us on rejecting evidence obtained illegally, but the factional divide opens here. Justice Brennan, a liberal from way back, said in one case: ‘It now appears that the Court’s victory over the Fourth Amendment is complete.’
The critique of the way that the Court has shown a solicitude for the wealthy to match that of the current President does not make good reading when the court slices up jury verdicts on exemplary damages. But it just gets awful when you look at the discrimination against people of colour, or the brutality of tactics used by some prosecutors to bully people into plea agreements.
A Kentucky man was indicted for passing an $88.30 forged cheque. That carried two to ten years. The prosecutor offered five years, and said that if the accused did not cop that, they would go after him under the Habitual Criminal Act that because of his record would land him in jail for life. The accused rejected the offer and got life. The Supreme Court reversed the appeals court and affirmed the life sentence. That, if I may say so, is grotesque. And I may add that no one has ever explained to my satisfaction that saying you will get a discount if you plead guilty does not amount to saying that you will have to suffer more if you exercise your rights.
One person who pleaded guilty was in one sense fortunate. While preparing a 60 Minutes documentary, someone by accident stumbled on evidence that they had the wrong man. He had only lost sixteen months of his life and ‘several teeth, which were knocked out in one of several jailhouse beatings he endured before he was freed.’
One survey showed that 11 % of 365 people shown to have been wrongly convicted pleaded guilty to crimes they did not commit.’ That looks to me to be about the opposite of the equation that we were brought up on – about letting some ‘guilty’ go, rather than convicting some that were ‘innocent.’
It gets worse. Mandatory sentencing is in my view based on a sop to the worst of our press, a distrust of our judges – and, in my view, an affront to our shared humanity. An Army veteran stole children’s videos in two lots, both worth under $100. But the state law made these misdemeanours into felonies because of a prior offence. In the result, and although he had never been found guilty of an offence involving violence, the accused was given two sentences of twenty-five years to life. For stealing for his children, this man who had served his country was then thirty-seven and he would not be eligible for parole until he was eighty-seven. You would not have read about it in Les Misérables. Even Victor Hugo knew where to draw the line. The Supreme Court upheld the sentence 5 to 4 ‘along ideological lines.’ Can you envisage, even among the assizes sentencing young people to Botany Bay for stealing bread, anything more grotesque than this?
But there is more.
The court had two very different ideas about proportionality of punishment: one for corporations under the Fourteenth Amendment Due Process Clause and another for people under the Eighth Amendment. The Due Process Clause, it said, did not allow a jury to punish one of the world’s wealthiest of companies with a punitive damages award of $145 million, which was equal to 0.29 per cent of its annual revenue – barely enough to get the attention of the company’s leadership. The Eighth Amendment did however allow California to put a thirty-seven year old Army veteran and father who engaged in minor shoplifting behind bars until he was at least eighty-seven.’
For stealing goods worth less than $200 – by a man who had done what the current President chose to avoid, and who celebrates his refusal to pay taxes because of his bankruptcies in business. And for good measure, the taxpayers of California will have the Justices of the Supreme Court to thank for a daily bill in excess of that $200 as the cost of that imprisonment – until a combination of sanity and humanity at last steps in.
And sentencing man to fifty years for what used to be called petty larceny. Did it occur to any of the justices who affirmed this sentence in obedience to what they saw as the law, that one day somewhere and in some hierarchy they may have to answer for their conduct before a tribunal that does not allow the defence of superior orders? Put differently, did none of their Honours lose any sleep at all over this decision?
One thought kept coming back to me in looking at these plea deals induced by what may be called duress – or undue influence – or unconscionable conduct – by those in a position of power who owe obligations to those in their charge over and above those owed by persons dealing commercially at arms’ length. If that pressure had been brought to bear by, say, a professional over a client or patient, or a priest over a penitent, or a teacher over a student, it would have obviously been open to the Court to inquire into the lawfulness of the impugned bargain by reference to that body of law that we know as equity. We in Australia have been blessed by the fact that many of our best criminal judges were thoroughly trained – I may say indoctrinated – in equity. I have not seen anything like that in the U S in my time – the word ‘equity’ does not get a mention in a very full index of this book. If I am right about that, then that is another reason why we here in Australia have indeed been fortunate.
Before looking at two other wrinkles in the perceived stance of the U S Supreme Court, I offer two anecdotes, one personal. First, just as there was a sea change in the 1960’s to judicial review of government action, so there was a change of at least similar magnitude both here and in the U K to schemes of tax avoidance that might fairly be called artificial. There was no formal announcement here, but as a simple matter of fact ‘Anything goes’ on one day became ‘You are not going to try that on here, are you?’ on the next. There was a form of judicial announcement in the U K. The doctrine was called ‘fiscal nullity’, but it was in truth a cri de coeur from their Lordships: ‘Please don’t act like you think we came down in the last shower. If very clever people put up what is in truth a house of cards, we will say so.’ While Australian courts said they did not follow the English model, the result was in substance the same. The days of a judicially blessed Alice in Wonderland were over.
The other anecdote is that when I was admitted to practise in 1970, many if not most magistrates were reluctant to make findings against the police. ‘If your client did not do it, why would the police have charged him?’ This was a very nasty form of institutionalised prejudice. But if you came to be acting for a government body proceeding against someone – like an egg board against a poultry farmer who was trying to avoid the marketing scheme – in what was called ‘the quasi list’, the wind swung hard and fast from the other end of the ground. It was like trying to evict a tenant from premises ‘protected’ since the war. You were likely to be met with all kinds of technical objections, and overt hostility. In an egg board case at Casterton, not far from the border, the magistrate refused to award costs to my client – even though the locals thought that s 92 made them untouchable. It was as if the bench was doing a kind of penance for its laxness in preserving due process in the general criminal law.
The first came back to me when I read of some tax cases in the Supreme Court. An American Airlines pilot named John Cheek was part of a ‘tax protest’ movement. He came to believe that wages were not income under tax law. He said that based on his research, and the teachings of the movement – the phrasing is that of Mr Cohen – he believed he did not have to pay taxes. A jury found him guilty. He appealed saying that the violations had to be ‘wilful’ and that the judge had not properly instructed the jury. The Supreme Court ruled 6 – 2 in his favour. Unsurprisingly, the minority said that the majority view defied belief.
You will be relieved to know that Mr Cheek went down the second time round. But the Court had contemplated a defence based on non-belief in the law. Here, surely, had solipsism made its masterpiece. Mr Cohen says:
It was particularly notable that the law-and–order conservatives – including Rehnquist, Scalia, O’Connor, and Kennedy – were in the majority, arguing that Cheek’s years of intentional tax avoidance were not necessarily criminal. The dissenters, Blackmun and Marshall, who wanted to uphold the conviction, were two of the Court’s most liberal members.
An intruder from here, or Mars, might feel compelled to ask – just what part of the American psyche drove six justices to stand behind John Cheek? The Tea Party? Paul Revere? The Alamo, perhaps?
Then there is what some call the ‘white collar paradox’. The same justices who have tended to vote to uphold the usual kind of criminal convictions tend to make an exception for white collar criminals. One observer says the Court tends to be ‘anti-defendant….except in white collar cases.’ The same observer said that Justice ‘Scalia voted for defendants in fewer than 7 per cent of non-white collar criminal cases and nearly 82 per cent of white-collar cases.’ One judge – not I think of this Court – made the remarkable admission to researchers that it was hard to avoid being biased when ‘people like you are standing in front of you.’ This is indeed a very touchy area.
The book canvasses many other areas of ideological dispute that may be of more interest to Americans than to us. I must utter two express caveats. The first is that I am taking Mr Cohen on trust and I have not gone to the law reports to look at the judgments themselves. That is a luxury that I immediately learned I could not afford when I was hearing cases. (It really is dispiriting to see the look of glum betrayal on the face of counsel when you ask them which side won in the case they have just referred to.) The second is more important. I am yet to hear the case for the other side – at least one that is put by someone who comes from the tradition, if I may put it that way, celebrated by those who have espoused the views that Mr Cohen has criticised. Perhaps we should hear from jurists who think that the jurisprudence of the Court needed a ‘correction’ after Warren. All I can say is that the job of presenting what Americans call the rebuttal should not in my view be left to a lightweight.
And whatever else books like this might achieve, this book shows the huge difficulty facing those in Australia who want to change the status of our Bills of Rights so that it is part of the Constitution as it is in the United States. How many Australians would like to have justices of the High Court make laws for them in the manner of the justices of the Supreme Court of the United States? Let us put the issue colourably. How would you like your children to be liable to be offered up for human sacrifice because of an ideology made into law by five unelected law-makers cloistered away in that suburban fastness that they call Canberra?
For that matter, the proponents of a law about ‘freedom of religion’ need to think about the forces that they might unleash. What we can say with some confidence is that if in 1689 you had told an English MP that one day the colonies might say that the provision in their Bill of Rights about the right to bear arms could have the effect described by the majority of the Supreme Court in Heller, he would not have hesitated to say that you were stark, staring mad.
The issue of equality is vital for at least two reasons. First, we read almost daily of the rate of depression and suicide increasing among Americans who did not get to go through college. Mr Cohen says:
The Court’s rulings have helped to produce historic gaps between the most well-off and the least. Wealth inequality is once again where it stood in 1929, just before the Great Depression began. The top one per cent of Americans control about 40 per cent of the nation’s wealth. Much of the rest of the country is only scraping by. A survey by an employment website in 2017 found that 78 per cent of Americans said they were living paycheck to paycheck.
It is one thing to recall 1929 – it is altogether something else to recall the Vesuvial years of 1789 and 1919.
The second reason that equality is of over-riding importance is that it underwrites our whole jurisprudence. The incontrovertible base of our logic is that a thing cannot both be and not be at the same time. The incontrovertible base of our jurisprudence is that like cases should be treated alike. Try giving a dog a biscuit each time he raises a paw to shake hands and then smacking him for the same action. (As Justice Holmes remarked, even a dog knows the difference between an accidental kick and a deliberate kick.) Try giving one daughter for Christmas a ukulele that is twice as big as that given to another. If some of the best jurists in the world make a mess of equality, what hope is there for the rest of us?