On September 25, 2007, the morning of the day Michael Wayne Richard was scheduled to die by lethal injection, the U.S. Supreme Court announced that it would stay another lethal injection until it decided a case challenging the use of the execution practice altogether.  Richard’s attorneys began frantically drafting motions to delay his execution as well.

Although the Supreme Court eventually halted lethal injections nationwide while its case on the matter was pending, Richard was executed after Texas’ highest criminal judge allegedly blocked his attorneys from seeking relief in her court.  Now, Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, could lose her job for intentionally denying a death row inmate access to the court system.

In a judicial misconduct proceeding similar to the one which removed Alabama Chief Justice Roy Moore from office, Keller is accused of intentionally deceiving Richard’s attorneys to prevent them from seeking a stay of execution.  At 4:45pm on the day of Richard’s execution, his attorneys asked the court if they could file the documents after the clerk’s office closed at 5pm.  Judge Keller told court staff to relay a message that the clerk’s office would close at 5.  Although literally true, Keller’s message concealed the fact that a member of the court was on duty to hear emergency after-hours motions–had the attorneys known this, they would have filed the as yet incomplete motion.

Although it is unlikely that Keller’s court would have granted a stay of execution her actions also prevented the U.S. Supreme Court from granting such a stay.  As a general rule, the Supremes will not hear a case unless the person seeking relief first appeals to the appropriate lower courts.  Moreover, the Richard incident is only the latest black-eye for the state with the nation’s most frequently used death chambers.  Although the Supreme Court hears less than seventy cases in a given Term, it recently blocked four Texas executions in a single Term.

Although much of the blame for Texas’ frequent and often-unjustified death sentences rests with state lawmakers, the Texas courts deserve a fair chunk as well.  Judge Keller’s Court of Criminal Appeals has been labeled the “worst court in Texas” for disregarding DNA evidence, tolerating confessions extracted by the threat of torture and ignoring outright malpractice by criminal defense attorneys.  In one instance, the court disregarded such an overwhelming weight of evidence proving a man to be innocent that its decision inspired a pardon by then-Governor George W. Bush.

Nor is Keller the only person of questionable fitness to have sat on the state’s highest criminal court.  In 1994, Texans elected a unknown lawyer of little distinction named Stephen Mansfield to the Court of Criminal Appeals.  Judge Mansfield lied about his qualifications on the campaign trial, claiming, falsely that he was an experienced criminal attorney and hiding the fact that he was once cited for practicing law without a license; and he campaigned on an explicit promise to execute more prisoners if elected.  He was not reelected in 2000, but only after he was convicted of illegally scalping tickets during his tenure as a sitting judge.

Normally when justice breaks down at the state level, federal courts are trusted to fill the gap by granting habeas relief to the wrongfully convicted and excessively sentenced.  Texans, however, must seek justice from the ultra-conservative Fifth Circuit, a court which once upheld the conviction and death sentence of a man whose attorney slept through his trial (to it’s credit, the Fifth Circuit eventually reversed this decision after months of criticism).

So Texas’ criminal judiciary has, for years, been dominated by a bench of kneejerk conservatives with little if any adult supervision.  Hopefully, Judge Keller’s trial will remind them that they can’t ignore the law forever.

The Chamber of Commerce, and the corporate interests it represents, is engaged in a wildly successful litigation strategy to immunize corporations from the law.  Indeed, as the Wonk Room has previously explained, the Supreme Court has embraced the health insurance industry’s claim that employer-provided health plans should be completely immune from accountability when their wrongful coverage decisions injure or kill a patient.  It has shielded dangerous medical device manufacturers from accountability when their defective products cause injury or death.  And it has even allowed the corporate sector to force consumers and employees into biased, privatized courts that overwhelmingly favor corporate parties.

One of the sharpest arrows in the corporate immunity campaign’s quiver has been a doctrine known as “preemption.”  Because the Constitution says that federal law is the “supreme Law of the Land,” Congress has the power to enact laws which “preempt” state laws that conflict with its intended goals.  A law preempted by Congress essentially ceases to function.

Although Congress’ power to preempt state laws is uncontroversial, corporate interests increasingly call on courts to misread federal laws to preempt progressive state statutes and tort law which they do not want to be bound by.  In the 1970s, for example, a contraceptive device known as the Dalkon Shield caused numerous infections and deaths, and Congress responded by requiring the FDA to approve new medical devices.  Even though Congress enacted this law to protect consumers from dangerous devices, the Supreme Court turned this intent on its head, providing almost-total lawsuit immunity to the medical device industry.

A decision handed down this Wednesday by the United States Court of Appeals for the Third Circuit, however, is a welcome sign that the judiciary’s willingness to immunize corporations from the law is not boundless.  In that case, Snapple was sued for labeling their beverages as “all natural,” despite the fact that the beverages contain high fructose corn syrup (Snapple, to its credit, discontinued its use of HFCS in late 2008).  Rather than defend its case on the merits–such as by arguing that HFCS is actually a “natural” ingredient–however, Snapple decided first to claim that it was completely immune from the suit because of preemption.

Essentially, Snapple claimed that, because federal law regulates food labels, it can’t possibly be the case that states also get to enact laws.  Like the medical device manufacturers who convinced the Supreme Court that the existence of the FDA precludes state laws governing similar matters, Snapple claimed that the FDA sets both a floor and a ceiling for regulation, and states lack authority to impose additional requirements on the beverage industry.

In rejecting this claim, the Third Circuit stood up for the important principle that federal law should presumptively be viewed only as a floor, and not as a ceiling to more progressive state regulation.  As Justice Louis Brandeis explained many decades ago, the purpose of the states is to function as a “laboratory” for new ideas which can be experimented with by one of fifty state governments and then applied more broadly if they turn out well for that state’s citizens.  Many of the laws progressives cherish, including the minimum wage and much of our federal environmental standards, were first conceived of by state legislatures.  If you take away the states’ power to enact new progressive reforms, you kill this process of experimentation in the cradle.

Corporate interests get this, which is why they have worked to hard to keep the states from enacting progressive reforms that can blossom and grow throughout the United States.  Hopefully, this week’s Snapple decision is an early sign that the courts are no longer interested in  preventing state innovation.

Our guest blogger is Lisa Gilbert, a Democracy Advocate for U.S. PIRG.

Do corporate special interests really have too little power in America? Does it seem like the electoral playing field is slanted against them?

Unbelievably, that’s the question the U.S. Supreme Court will take up this fall. In fact, the justices considered it so important that they cut their vacations short by a month to deliberate.

According to the most recent data from the nonpartisan Center for Responsive Politics, oil and gas related PACs and individuals gave $35 million to 2008 congressional candidates, insurance interests gave $46 million, and securities firms gave a whopping $156 million. Tom Donahue of the U.S. Chamber of Commerce recently pledged to spend $100 million in order to fight lawmakers’ efforts to rein in Wall Street excesses, curb global warming pollution and reform health care.

However, in spite of this type of big spending, this September, the Supreme Court will rehear Citizens United V. FEC to determine if corporate money should have still further influence on our political system. In fact, determining whether the Court’s past rulings on campaign finance reform should be thrown aside will be one of Justice Sonia Sotomayor’s first tasks – “a potentially monumental decision that could reverse a century of congressional restrictions on election spending.”

The case concerns a documentary targeting Hillary Clinton’s presidential campaign, produced by a non-profit group called Citizens United. The group used corporate treasury funds to make the film and wished to air it right before the primary elections on cable TV, in violation of the longstanding ban on corporate contributions to federal campaigns.

By coming back early to rehear this case, it is clear that activist judges on the Court are considering rolling back decades of established law limiting corporate spending in elections. At stake is whether corporations will be able to spend unlimited funds to impact elections, and whether this ability will allow them to influence candidates for office with millions of dollars in advertisements opposing or supporting their races. Read more

Opponents of health reform have added a new trick to their bag of fear-tactics: pretend that the White House is violating the First Amendment.  After the White House sent an e-mail to the President’s supporters asking them to pass along right-wing e-mail forwards that make false claims about health reform — so that the White House can set up a fightthesmears.com-style response to these claims — Senator John Cornyn (R-TX) sent a breathless letter to the President accusing him of violating “the First Amendment and America’s tradition of free speech and public discourse.”  By the end of the day, right-wing media exploded with claims that President Obama launched this plan to gather the names of the President’s opponents; former Speaker Newt Gingrich even compared the White House’s fight-the-smears strategy to the Alien and Sedition Acts.

By Thursday afternoon, Fox News even invented a made-up case saying that the President’s actions are unconstitutional:

It’s absolutely unconstitutional, I mean, the Supreme Court has ruled directly on point. When Richard Nixon was worried about anti-war protestors during the Vietnam era, he sent FBI agents undercover—CIA agents undercover—which was against the law for them to be operating in the US. And military in civilian garb to take photographs and to use tape recorders to record the voice, and they sued; it’s a very famous case. And the Supreme Court said . . . . the government is prohibited from intimidating people from exercising free speech, and recording their names or their voices, or asking people to spy on them would be exactly the intimidation the Supreme Court condemned.

Watch it:

We are unable to find a single Supreme Court case fitting this description, and several legal scholars whom the Wonk Room contacted were unable to identify such a case.  Although there is one Nixon-era precedent dealing with soldiers spying on left-leaning organizations, that case did not say what Fox says that it said.

In Laird v. Tatum, the plaintiff challenged the Army’s practice of sending undercover intelligence agents to attend meetings that were open to the public, and gather information such as the names of the speakers and the number of attendees.  The justices, however, never even reached the merits of the case because the plaintiff never showed that “he has sustained or is immediately in danger of sustaining a direct injury as the result of” the Army’s program.

So President Obama’s fight-the-smears campaign is all kinds of illegal, just so long as you live in the Neighborhood of Make Believe.  Maybe next week, Fox and Senator Cornyn will claim that health care reform will drive up costs for unicorns and goblins.

During Judge Sotomayor’s confirmation hearing, conservatives repeatly made the false claim that she believes that U.S. law is governed by foreign courts.  In a Senate floor speech yesterday, however, Senator Jon Kyl (R-AZ) doubled down on this lie, audaciously accusing Sotomayor of perjuring herself before the Judiciary Committee:

“Later in her hearing, Judge Sotomayor gave the following testimony: ‘I will not use foreign law to interpret the Constitution or American statues. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.’ While this kind of declarative statement would normally provide some measure of comfort, it is belied by words Judge Sotomayor uttered less than three months ago, that judges were ‘commanded’ to look to ‘persuasive’ sources, including foreign law, in interpreting our own law. And it is even inconsistent with an exchange Judge Sotomayor had with Senator Schumer earlier in the hearing, in which she agreed that foreign law could be used for the same purposes as traditional interpretive tools, such as dictionaries.

“It gives me great pause that Judge Sotomayor could say one thing at a public speech earlier this year and say the opposite while under oath before the Judiciary Committee, especially since she never repudiated her speech.

No one, including Judge Sotomayor, actually believes that an American judge is bound by foreign decisions, and Kyl is simply lying when he claims that she does believe this.  One of the first things that any lawyer learns in law school is that not all citations are created equal, and so when a judge cites to one source or another they are not necessarily saying that this source is controlling law.  Conservative Justice Antonin Scalia recently cited to the Talmud in a judicial opinion, and a Seventh Circuit judge once cited hip hop artist Ludacris, but no one thinks that Scalia believes we should be ruled by unelected Rabbis, or that Seventh Circuit Judge Terence Evans believes that U.S. law is governed by unelected rappers.

As a general rule, citations to binding case law, statutes, regulations and the like are generally referred to as cites to “mandatory” authority, because they rely on legally binding materials that judges have no choice but to follow.  Other citations, to law review articles or holy texts or non-binding caselaw, are known as “persuasive” authority.  So when Sotomayor referred to foreign law as “persuasive” she was saying the exact opposite of what Kyl accuses her of.  “Persuasive” is the legal word for a citation to something that is not controlling law, and when Judge Sotomayor states that she relies on persuasive authority, she is endorsing a practice used by literally every member of the United States Supreme Court and taught to every single lawyer in the country.

Indeed, the difference between mandatory and persuasive authority is so basic, most law students are taught this distinction in their first few weeks of law school.  In light of the fact that Senator Kyl spent many years as a litigator before entering politics, it simply defies belief that he would not be aware of this distinction.  If Kyl actually believed that a judge’s citation to a persuasive source like foreign law indicates that they believe foreign law is binding, mandatory authority, it is unlikely he would have made it this far in his career without being disbarred.

Sadly, however, there is a narrow band of Kyl’s conservative base that gets charged up by false claims that liberals can’t wait to transform America into France.  In Kyl’s world, keeping these nuts fired up is apparently much more important than the truth.

For the second time in as many weeks, Senator Arlen Specter (D-PA) has introduced legislation to overturn a Supreme Court decision that immunized corporations from accountability for their illegal acts.  Specter’s bill would strike down Stoneridge Investment Partners v. Scientific-Atlanta, which held that companies who enable other corporations to cook their books are immune from federal law banning securities fraud.

Stoneridge involved an elaborate scheme which a cable company called Charter Communications allegedly set up to trick investors into believing that its cash flow was much higher than it actually was.  As the Supreme Court explained the scheme:

Respondents [Scientific-Atlanta and Motorola] supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers.Respondents agreed to the arrangement.

So Scientific-Atlanta and Motorola, agreed to overcharge Charter for an asset that Charter’s books would value at the inflated price, and also to overpay for advertising with revenues that Charter could account for as sales.  The result was a ledger which inflated Charter’s paper value without actually requiring Charter to earn any more money.

This kind of deception is illegal under federal securities law because it fools investors into investing in a company which is far less sound than its books suggest.  Stoneridge, however, held that companies which assist other companies in defrauding their investors are immune from private suits.  Considering that many companies who engage in Enron-style tricks do so because they are trying to hide their impending collapse, if more solvent companies who enable fraud are not accountable under the law investors are left with no one to seek compensation from when their stock becomes worthless.

Specter’s bill would fix this problem by allowing suits against anyone who provides “substantial assistance” to a company which defrauds its investors.  Hopefully, bills like this one will not only become law, but they will send a clear message to the Supreme Court to stop holding that corporate interests are immune from the law.