Nearly one in three people will be arrested by the time they are 23, a study published Monday in Pediatrics found.

Astounding.  Horrendous. Inaccurate?

The study, published in USA Today, sounds yet another round of alarms that proves that one third of our children are violent predators, or we are outrageously over-reacting to childhood indiscretions, according to one’s predilections. 

The new data show a sharp increase from a previous study that stunned the American public when it was published 44 years ago by criminologist Ron Christensen. That study found 22% of youth would be arrested by age 23. The latest study finds 30.2% of young people will be arrested by age 23.

Criminologist Alfred Blumstein says the increase in arrests for young people in the latest study is unsurprising given several decades of tough crime policies.

So the culprit that has turned our babies into criminals is tough on crime policies?  That makes perfect sense, except for the fact that the numbers don’t seem to bear out.  Via Radley Balko at HuffPo :

Taken together, these studies and anecdotes suggest a troubling trend of putting kids in handcuffs for doing the sorts of things kids have always done. This has spurred concern over a burgeoning “school-to-prison pipeline” problem in which children — particularly poor, minority and at-risk children –are funneled from public schools into the criminal justice system. In response, the Justice Department and the Department of Education launched a joint initiative last July that aims to combat this trend.

One problem with the school-to-prison pipeline narrative, however, is that isn’t clear that it actually exists, much less that it’s getting worse. According to the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention, 1.9 million minors were arrested in 2009. That’s down 17 percent since 2000. The 2.3 million arrested in 2000 was down 20 percent from 1996. Since 2000, juvenile arrests have also slightly declined as a percentage of total arrests, for both violent and property crime.

The problem with empiricism is that it’s all about numbers, even when they fly in opposite directions.  The problem with the adoration of empiricism (not that there’s anything wrong with that) is that it becomes a basis for action and reaction.  As if we needed more than “common sense” to rationalize policies that “everybody knows” are right even though there is no basis in fact for their creation and less obvious unintended consequences that “everybody” won’t notice until decades later.  Hey, thinking is hard and can make your head hurt.

My efforts to reconcile the conflicting numbers failed.  Whether the numbers of children arrested are up or down is a mystery to me.  It’s not that I doubt Blumstein’s study, but that Balko’s stats seem equally well grounded.  But not being slave to empiricism, there are conclusions that can nonetheless be drawn.

In our zeal to protect our children from every conceivable harm that might possibly befall them, we’re creating a new underclass of children whose conduct, a few decades ago, would have been characterized as normal, if occasionally rascalian, childhood behavior.  Now, it’s criminal, and its perpetrators are criminals too.  And this will limit everything they do for the rest of their lives.

State and federal governments have been prosecuting consensual crimes more aggressively, particularly drug crimes. And since the late 1990s, again with federal prodding, most public schools have embraced a “zero tolerance” policy for many offenses (drugs and weapons in particular), treating every infraction as if it were a criminal offense. The policy bars school officials from considering context or using nuance when dealing with an accused offender.

There are also more police in America’s schools. A survey by the Justice Police Institute released last month found a 37 percent increase in the number of law enforcement personnel (called Special Resource Officers, or SROs) employed by public schools between 1997 and 2007, including more than 5,000 such officers in New York City schools alone. The increase in SROs, also driven by federal funding, was in part influenced by media-driven hysteria over a few highly publicized school shootings in the 1990s.

There have also been a number of stories in the news of late about pre-adolescent children arrested for absurdly minor offenses, including a 6-year-old Wisconsin boy arrested for “playing doctor” with a 5-year-old girl, a 12-year-old arrested in Memphis for not wearing his helmet at a skateboard park, a 13-year-old boy arrested in New Mexico for burping in gym class (his parents’ lawsuit also revealed the arrest of a 7-year-old girl who refused “to sit next to the stinky boy” in class), a 10-year-old Connecticut boy arrested for giving a classmate a “wedgie,” and a 5-year-old who was bound at the wrists and ankles, arrested and charged with assault after kicking a police officer in the leg.

Remember those days back when, having some fun, blowing off some steam, risking life and limb playing with sticks?  You are today’s child criminal. Me too.  Thinking back, I feel fairly confident that I would be on death row for some of the shenanigans I pulled.  Of course, we used to call them shenanigans. Now, they’re Shenanigans in the First Degree.

The arguments made here (at great length and with some zeal) that the putative goal of creating a world where no harm, real or theoretical, can go uncriminalized and unpunished, is going to be the ruination of our children.  They need to skin their knee, eat dirt, play jokes and make mistakes.  Just like we did. We cannot assure every child the opportunity grow to adulthood without every feeling pain.

While every parent wants their child to reach maturity with only the happiest memories, it requires a great many other children to pay the price.  Whether this is one-third or less, and whether this comports with our baseless “common sense” adoption of every myth used to manipulate our emotions and limited grasp of reality, the consequence is that we are turning children into criminals over nothing in our efforts to stop every inchoate harm.

I like empiricism as much as the next guy, unless the next guy happens to be a statistician or lawprof in need of tenure.  But I’m more concerned for the welfare of children.  The gravest harm we can do to them isn’t ignore the potential for an occasional skinned knee or hurt feeling, but to construct an environment more inclined to have them arrested in the name of a perfect world than allow them to make the ordinary, normal mistakes from which they can learn to develop into mature, responsible, productive adults.

And that’s why the numbers tell me, whether their up or down. 

If a police officer, for no particular reason, decided to put his handgun to your temple and inform you, with a wry smile on his face that he was going to pull the trigger and blow a hole in your head, he was would certainly be wrong.  But if you were to, say, kick him in the nuts in order to stop him from doing so, you would be committing an assault on the officer. Afterward, you would be properly convicted of the assault, while the police department would consider investigating the officer’s conduct to determine whether it violated department policy.

It didn’t have to be this way, but when the law elevates the protection of police over the right of a person to defend themselves from police misconduct, as reflected by United States v. Crossland, that’s what happens.

Yesterday,  we discussed how Judge Florence Pan, employing the tired default rationale of finding the cops’ story credible absent conclusive proof to the contrary, found against Crossland and his witnesses on the issue of whether he physically fought back after cops approached him without reason, stood him up against a wall and began to search.  No one, not even the compliant Judge Pan, contends otherwise.

The government presented evidence that on the evening of April 24, 2010, Metropolitan Police Department (“MPD”) Officers Brandon Baldwin and Kim McCue were engaged in an “aggressive high visibility patrol” in the area of Third and Bryant Streets, N.E. The officers, who were in full uniform, stopped appellant and his cousin Joseph Womack, both of whom were standing near the corner, as part of their effort to gather information about a rash of recent shootings and drug sales in the area. Officer Baldwin acknowledged that neither man was “doing anything unlawful” when the officers stopped them. The officers instructed both men to place their hands on a nearby fence for a weapons pat-down. Appellant “initially” complied, but quickly became “agitated,” telling Officer Baldwin words to the effect of “Fuck this shit. I’m tired of this.”

Only after this point is there any contested issue of fact.  What is uncontested is that Baldwin and McCue used their shields to deliberately violate Crossland’s constitutional right to be left alone, to refuse to be seized and searched, to tell the “aggressive” officers in whatever language he chose to go away.

As  Radley Balko noted with incredulity:

Both the trial court, the appeals court, and even the prosecution acknowledge that because Crossland was doing nothing wrong before the incident, it was illegal for the police to stop, detain, and search him. Nevertheless . . .

 . . . as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) . . .

So even if the police illegally stop you, detain you, and beat you, you aren’t permitted to resist. Just roll over and take it. Submit.

District of Columbia law specifically provides that forceful resistance to an unlawful order is unlawful.  The rationale behind this is that in the scheme of an orderly society, where questions of the lawfulness of a police officer’s order may not be conclusively known until a post-hoc determination by a court, the officer should not be put at risk of harm by forceful resistance.  In other words, it’s the flip-side of the First Rule of Policing, get home for dinner.  Cops will do whatever they have to do to make sure they are not harmed. If that means harming you, so be it.  And the law backs this up.

The problem, however, is that the rule elevates a policy to protect police officers from resistance over the right of a citizen not to be harmed or abused.  The underlying assumption is that a police officer would never use his authority to do so.  Some of us see this assumption as flawed, bolstered, perhaps, by the thousands of videos conclusively showing otherwise.

At WeLoveDC, the question is raised in the extreme:

In other words, once that officer tells you you’re under arrest, shut up and take it. In 2008 the Dolson case upheld that law when it was applied to a man who held a gate shut against an officer – after telling the officer he did not consent for the officer to enter without a warrant – and, after the officer forced his way in and reportedly began choking him, broke the officer’s nose. Whether or not fighting back against an officer while being raped is similarly illegal – assuming they are simultaneously arresting  and assaulting you  – is still an open question.

Of course, there is a practical aspect to fighting back to prevent your being raped or murdered by a cop, that being the concern over arrest for forcible resistance pales in comparison to being raped or murdered.  Conceptually, however, a police officer engaging in illegal conduct, whether merely choking a man (who might well have been killed had he not fought back) is, under the rule, entitled to engage in crimes without fear of challenge. 

It’s not an open question, but an assumption that police officer would never do such a thing.  There is no conceptual basis to distinguish a police officer who uses his authority to rape or murder from the police officer who merely seizes a person without basis, puts him against a fence and searches him.  There is no line of demarcation where some misconduct can’t be resisted while other can.

In his concurrence in Crossland, Judge Schwelb writes:

As Judge Thompson points out in her opinion for the court, we are of course bound by the trial judge’s credibility findings, and I fully agree that Crossland’s convictions must be affirmed. But if anything good is to come from this unfortunate street encounter between the police and a citizen, it should be an end to the unconstitutional police conduct revealed beyond peradventure by this record. If this hope is naive and unrealistic, then to that extent we are less the land of the free than we would otherwise be.

While he is, to a large extent, bound by the trial judge’s credibility findings, that Crossland physically resisted, his lament over the flagrantly unconstitutional police misconduct is bittersweet. At least he bothers to say something about it. But the words are empty and meaningless, made all the more so by the fact that the panel majority couldn’t be bothered.

To call this naive and unrealistic is a bit of judicial arrogance.  It’s far worse than that.  The check on unfettered and unlawful police power is the legal system.  We give these folks cool robes and a high bench, and expect them to use it to enforce the law, parts of which demand that agents of the government not harm us.  A good whine about police misconduct may make for a nice read, but the job is to stop it.  When the best a judge or court can do is complain about its impotence to stop police from engaging in illegal conduct, then it has failed miserably.

And what is a court to do?  The D.C. law that a person cannot physically resist unlawful police conduct smacks of unconstitutionality.  Consider, we have a fundamental constitutional right to be left alone, to not endure the unreasonable searches and seizures, and to defend ourselves from harm.  The government does not have rights, but authority.  Its authority ceases when it steps over the line of lawfulness; the government has no authority to engage in unlawful conduct.

Does a law the deprives people of their fundamental constitutional rights, in order to give the police a free pass on engaging in conduct for which there is no authorization, pass muster under strict scrutiny?  The governmental interest is the avoidance of escalation of police/citizen encounters into violence and the protection of police officers from harm in the performance of their duty. 

The contrary interest is the protection of people from harm at the hands of police.  The facile historic judicial and government assumption, as expressed in Judge Florence Pan pathetic finding, that cops just don’t go around randomly harming people, is false.  Sometimes they do.  And it happens with sufficient regularity, sufficient normalcy, that the governmental concern for the safety of its cops over the safety of its citizens cannot be tolerated.  It’s not that cops don’t deserve to be protected, but that the people do as well, and the protection of the people is a primary function of government. 

And yet Terrance Crossland is the guy convicted.

David Segal continues picking and sniffing in his latest feature in the New York Times, laying out his case against the ABA for its guild-like control over entry to the profession, and its related imposition of requirements for accreditation that foreclose efforts to provide low cost legal education.  Since everybody hates the ABA, this is something that everybody can get behind.

Except, once again, Segal has taken some decent, if tired, points and squandered them.  The article is less a honed argument than a collection of anecdotes and quote, signifying nothing. 

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low– and middle-income communities….

Paradox?  Hardly.  There are two tacit assumptions underlying the article which need to be noted and debunked.  First, lawyers are licensed as generalists.  I’m every bit as much a lawyer if I were to take on a corporate merger as a murder.  Thus, I have to be trained and tested to do both, as the shingle says only “lawyer.”  Change this detail and the entire legal world shifts on its axis.

Whether it’s the solicitor/barrister distinction, or as I proposed, the creation of the Legal Practitioner, or any one of a thousand variations in between, we can eliminate this structural failing within the profession.  If we didn’t need to be trained as generalists, a legal education could be accomplished at a fraction of the cost. 

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

So why must every lawyer be taught as if he’s doing a real estate closing today and trying a multi-million dollar class action tomorrow?  Beats me. Sure, there will need to be strict controls to make sure that lawyers, paras, legal practitioners, solicitors, barristers, whatever you want to call them, stay within the scope of their competencies.  That will be hard work.  So what? 

The second assumption deals with the reality that there are too many lawyers who want to earn the big bucks and not enough to fill the unmet needs of normal folks.  Segal explains that it’s all because of the crushing debt load of going to law school. 

One recent Nashville graduate is Tad Wintermeyer, who was a 26-year-old pilot and airplane mechanic when he enrolled in 2005. His monthly cost for tuition “was like an expensive utility bill,” he says. In 2009, he left with a J.D. and no debt. He took judicial appointments as a public defender, which paid about $25,000 his first year of practice.

“Almost all of my clients were indigent, or low income, or on some kind of government assistance,” he says. “It was incredibly rewarding work.”

What Mr. Wintermeyer has given up in prestige, interstate mobility and income, he says, he has gained in peace of mind, not to mention the freedom to donate his time. There are, of course, thousands of graduates of A.B.A.-accredited schools who are every bit as satisfied with their degrees.

Damn, that’s heartwarming. It’s also nonsense. Sure, there are some truly dedicated, truly interested people who enter the law as means of helping others. They are prepared to forego wealth and prestige in order to use their education and skills for the betterment of humanity.  And that means all lawyers (or lawyer wannabes) are great humanitarians who would willingly give of their time for others if only they didn’t have massive debt to pay off?  On what planet?

Despite the few, the proud, the poor, who do the good work, the vast majority want their Mercedes Benz station wagon in the driveway.  There is a reason why AUSAs fly out the door when their commitment is up to grab their piece of the biglaw pie.  There is a reason why biglaw partners don’t apply for line prosecutor jobs.  Having lost three years of their life, a bunch of money and coming home to hungry mouths and iPods that need cell service, they want to enjoy a comfortable life, if not a fabulously wealthy one.  Defending indigents isn’t the reward they had in mind.

Ken at  Popehat wrote about his pro bono representation of a science blogger in a SLAPP suit, where he and Marc Randazza stood up for the First Amendment because it was the right thing to do. No doubt he’ll regret announcing his victory when the next thousand demands come in for his freebie services, and the angry and outraged reactions smack him in the face because he can’t take them all.  No good deed goes unpunished, even when you are, as Ken and Marc are, humanitarians.

Even if we assume that 20% of all lawyers would desire to use their education for humanitarian purposes, the need for affordable legal services calls for the 80% who won’t.  The same structural deficit continues unabated.  The argument, to the extent it can be called that, in Segal’s article is deeply flawed. 

On the bright side, he includes the voice of Gillian Hadfield, who has been the foremost proponent of fundamental, and rational, change to the profession.

Her vision isn’t a free-for-all, where anyone can hang a shingle; it is a range of options that would entail an array of educational degrees and a broad spectrum of prices and formats for legal services.

This is clearly a fundamental shift from the lawyer generalist approach, the notion that no legal function can be broken down into more limited, discrete tasks that can be accomplished without knowing how to try a case or spending $150,000 on law school. 

If it turns out that we can serve the needs of those for whom legal services are unaffordable, but we are still top heavy on full-blown lawyers who want to make the big bucks but find themselves sitting on the couch in mommy’s basement, so what?  Eventually, people will figure out that law school isn’t going to pay off and find something to do with their lives that makes sense.  The far more important need, to serve an underserved population, will be met, and the far less important need, to provide jobs for lawyers whose only concern is personal wealth and prestige, will collapse under its own weight.

But at least we all agree that the ABA’s control of legal education has been a massive failure on all ends.

Radley Balko posts about a terribly depressing case, made even worse by the opinion of an appellate court that acknowledges how wrong it was and yet demurs.  Terrance Crossland was mowing his lawn, smoking a cigarette and minding his own business, a rather unremarkable beginning to a day that will haunt him forever. 

Last April, Crossland and his cousin were approached by two D.C. Metro officers on patrol “to gather information about a rash of recent shootings and drug sales in the area.” Crossland was mowing his grass while smoking a cigarette. The police acknowledge that neither Crossland nor is cousin were doing anything unlawful.  The two men were told to turn around, put their hands against a fence, and submit to a search. By both accounts, Crossland initially complied, then said, “Fuck this shit. I’m tired of this.”

Police say Crossland then elbowed one officer in the head, at which point he was punched, taken to the ground, kicked several times, and pepper sprayed.

The court specifically credited Officer Baldwin’s testimony, noting that it was corroborated by the testimony of Officer Castan. The court explained that it did not credit appellant’s testimony or that of the witnesses he called because “[a]lmost all of them had a bias” and because it was “not credible . . . that the police were out that day, randomly beating people up for no reason” and that even if they were doing that, it made no sense “that they would beat up [appellant], as opposed to Mr. Wo[]mack, whom they had a history with” and had arrested the week before.

Certain jobs tend to offer greater opportunity to slide into the toilet than others.  Criminal defense lawyer, for one.  Cops as well.  But few offer such a rife opportunity as prison guard, with so few people watching over his shoulder, and so few in a position to complain without a very real likelihood of retribution.  Really bad and painful retribution.  Matthew Amos is one of the few who got caught. 

From the Denver Post :

There’s no shortage of incredible stories about wrongs done, whether unusual or sadly commonplace.  What there is, however, is a serious shortage of reliable stories, stories that make sense.  The reporting, too often, is just awful, leaving us with either a gross misimpression of what happened or, most of the time, just confused.

Radley Balko, who does a great job ferreting out stories of abuse and misconduct,  twitted about a  bizarre forfeiture Holly Springs, North Carolina.

When I read Jeffrey Stephens’ first book, Targets of Deception, the birth of the Jordan Sanders series, I enjoyed it immensely.  It was a great book, but there was another reason.  Jeff did what many of us can only dream of doing, writing a novel that others want to read.  We dream of being the next Turow, the next Grisham.  Stephens was doing it.

That’s no longer the case. Jeff Stephens is no longer trying, but he has accomplished it with his latest book, Targets of Opportunity.  The plot is thicker, the characters more real, the story more captivating. 

Stephens’ hero, Jordan Sandor, is back in the CIA fold, pushed into the morass of terrorist intrigue where Jeff connects dots between the sovereigns we forget because of myopic focus on the enemy in front of us and their use and abuse by the enemies lurking in the background.  The story goes from North Korea to the mideast to Venezuela, but most of the time is spent in the Caribbean, especially one of its most magnificent islands, St. Barths.

Jeff’s descriptions of St. Barthélemy, from the gut wrenching drop when flying in to the restaurants in the harbor of Gustavia, bring back a rush of memories.  There’s no doubt that he had to do some heavy research to nail it down so perfectly, and any excuse to hang out in St. Barths works for me.  Most amazingly, Jeff was able to convincingly create a French hero, Lt. Vauchon, who not only demonstrated intelligence and boldness, but didn’t surrender at the first opportunity.  It’s not easy.

While the story can be read as a thrill a minute spy novel, as Jeff develops story lines in short chapters that shift from one side of the planet to another to provide the sense of a real time tale of intrigue happening by different players, only one of whom has the full vision of the scheme, there is still a lawyer’s view embedded in the book.  Sandor, for all the attributes that makes a spy worthy of admiration, still shows his humanity by doing everything possible to avoid killing whenever possible. 

When others on his team want to put the bad guys down, Sandor’s sense of humanity comes out, that no one need be harmed except to the extent necessary to protect someone or save the nation.  There’s no joy in senseless killing, even of the enemy, those who would never have given the same “courtesy” to us. 

At the same time, Jeff takes on the simplistic bureaucracy of government, the pencil pushers who try to dictate the rules by which others should play.  Jeff is no fan of grocery clerks with lists and platitudes, who have never put their butts on the line to accomplish a necessary task. 

One of the most remarkable aspects of this Sandor novel is that there was no need to resort to a gratuitous sex scene, as the story itself was more than enough to keep the reader turning page after page.  While Sandor has his moments with women in the book, it’s a quick cut to the end and he’s back to work.  If you want romance, go elsewhere.  This book is all about the intrigue, and the absence of any sticky sheets is deeply appreciated.

Jeffrey Stephens went from Manhattan solo practitioner to Greenwich spy novelist, and from lawyer who aspired to being a writer to a great writer.  I couldn’t be happier for him, and enjoyed this second Sandor novel immensely.  For those of us who spend most of our time reading opinions that would ruin a snooze for a narcoleptic, not to mention barely make any sense at all, Jeff’s stories are a pleasure and just plain fun to read.  I can’t wait for the next book in the series.

One branch of government has the guns.  Another has the purse.  And another has nothing but trust, which is why it’s the Least Dangerous Branch.  That also makes it the easiest to bully, and Newt Gingrich’s career, since he held the job of minority whip in Congress, was built on being a bully.  He’s good at it.

And that doesn’t make him wrong.  From the WSJ Law Blog :

–Fox News anchor Megyn Kelly began with Newt Gingrich.

Kelly: You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. Two conservative former attorneys general have criticized your plan, saying it alters the checks and balances of the three branches of government. And they used words like “dangerous,” “outrageous,” and “totally irresponsible.” Are they wrong?

Gingrich: Well, the first half is right. It alters the balance, because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.

(APPLAUSE)

There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. Now, we have…

(APPLAUSE)

I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.

We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.

(APPLAUSE)

Kelly: These are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible.

Gingrich: Sure. I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.

Kelly: Something that was highly criticized.

Gingrich: Not by anybody in power in 1802.

(LAUGHTER)

(APPLAUSE)

Gingrich: Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy. Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers. And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us.

It sounds insane at first blush, but it’s not.  It’s not quite right, but it’s not insane either.  The “checks and balances” of the other branches of government over the judiciary include the nomination of judges by the President, the consent of the Senate to judicial appointment, and the funding of the court system by Congress.  The first two suggest that the other branches pick wisely, but life tenure tends to change a person’s way of thinking. 

Certainly impeachment for bad behavior is a limit on what judges might do, but bad behavior doesn’t usually cover decisions that others think are absolutely awful.  On the other hand, the entire point of life tenure is to make sure that judges are free to make decisions based on law, without fear of ramifications for political or transitory concerns.  They can’t be removed because they anger someone in another branch with their decision, freeing them to be honest rather than appeasing.  Similarly, there’s no revote, after a while, to decide whether they’re still as excellent a choice as they appeared at first.

But is that it?  Put aside the fact that Activist Judge is an epithet tossed about with wild political abandon, and consider that it’s certainly conceivable that the least dangerous branch could, in some way that pretty much everyone agrees, be activist. Let’s say a circuit decided that they just didn’t like the Seventh Amendment any more and decided to cross it off the Bill of Rights.  What to do?

The phrase “activist judges” has become a conservative mantra, used to confuse the ignorant into believing that the judiciary’s job is to make popular decisions.  Others realize that courts “make law” all the time, filling in the blanks that legislative bodies leave behind, often intentionally so that they won’t bear the weight of their ill-conceived laws, or to provide meaning to words that are sufficiently or inherently vague that they provide inadequate guidance.   

Aside: For those who argue the “Constitution means what it says, no more, no less,” you’re neither going to grasp nor be persuaded here, so there’s no real point in my explaining this to your satisfaction.  However, I leave you with the words written by Charles Lutwidge Dodgson:

  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

You aren’t likely to appreciate this quote either, but I like it, have the ability to include it, and so I do.

Had the founders intended the judicial branch to be wholly independent, they would have provided for the courts to fund themselves.  They were well aware that control of the purse strings was a death grip, that could strangle a co-equal branch of government. 

What preserves the integrity of the judicial branch is trust.  The courts have no money of their own. No standing army, the few peashooters of the gendarmes is hardly a match for a decent tactical missile, which could destroy a politically-named courthouse in a flash.  The words of judges matter only because we trust those words.  We believe that somebody has to be honest, to rise above politics and disagreement and give us a final answer that we can trust.

If that trust is lost, or squandered, then the duty of the other branches is to use it’s power to rein in, perhaps even eliminate, the out of control branch.  In this respect, Newt is absolutely correct, the judiciary is not above the other branches, immune from violations of its mandate.

Newt is wrong, however, to suggest that Americans are in favor of pulling the plug on the third branch of government every time a ruling rolls around that doesn’t get three cheers from Georgia.  If a president tried to seriously manhandle the judiciary every time there was a decision he didn’t like, it would be the executive at risk rather than the courts.  Americans may be dumb, but they’re not stupid. 

They know they need a legal system, even if they think the current one sucks and fails to reflect their sensibilities.  They may not have great trust in the judiciary’s judgment, but nobody is comfortable with the idea of the other two branches of government without a judiciary to smack  them.

Yet the Judicial Branch of government should never be so comfortable in its existence and power to believe that it lies wholly outside the control of the People or is above the power of the other branches.  Each branch should live in fear of the others.  Each should be constantly vigilant that if it fails to retain the trust of the American people, it’s mandate ceases to exist.  The Least Dangerous Branch is just as subject to checks and balances as its more dangerous brothers.  And that’s how it should always be.

Forget the details of Newt’s plans. They’re nuts. But at its core, his point is hardly as ridiculous as one might think.  And judges need to remember that the judiciary is just as strong, and fragile, as any other branch of government.

Nathan(s) Burney has embarked on an ambitious project, but he’s clearly up to the task.  He calls it The Criminal Lawyer’s Guide to Criminal Law.

It starts with The Crime, and works its way forward.