Grudge Match: Basketball Edition

You may be forgiven, dear Reader(s)™, for thinking this blog was dead. But it isn't! It was just, well, frozen. I, for one, am currently obsessed with: (1) pursuing justice on behalf of my saintly clients; and (2) blogging about college basketball.

On the latter point, tomorrow is the rematch of the Iowa – Wisconsin basketball game. Wisconsin is going for the sweep, hoping that Iowa's coach once again blows his top.

Mr. Gillette's birth-state honor is on the line, as the football team also lost to the mighty Badgers in the fall.

May the best state school (that is, Wisconsin) win.

Worlds Colliding All Over My Face

As Reader(s)™ may have noticed, Mr. Gillette and I disagree about many things. But one thing we have in common, apparently, is non-appreciation of Slate legal affairs reporter Dahlia Lithwick. Unfortunately for us, Ms. Lithwick has been given a prize by her peers for the quality of her Supreme Court reporting. Upon learning of this, I honestly thought for a moment that the prize was one of those anti-prizes (like a Golden Raspberry). No such luck.

My general beef with Ms. Lithwick is her cycnical, personality-focused coverage of the Supreme Court. The implicit premise of every dispatch she files is that the Supreme Court justices make their decisions based on ideology at best and temper tantrums at worst. It's rather unbearable.

So, for instance, you'll see her complaining that: 

Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

But I've noticed a conspicuous silence when "powerful corporate interests" somehow lose at the Supreme Court. For example, see my report on Pacific v. Valldolid (2012):

[T]he losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to. [And] the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout." 

Well, you may say, sometimes Justice Kennedy gets swung, but the Thomas-Scalia axis always be comin' down on my boys! Yet it was Justice Thomas who came to the defense of Mr Valladolid, the lowly roustabout. And then when no one's looking the Court goes 8-1 in favor of "big business" with, ahem, Justice Scalia in stirring dissent:

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."

These are just two cases I've happened to notice and blog about. I don't believe I've ever seen Ms. Lithwick so much as acknowledge any of these counter-narratives. Why not, I wonder? The answer is obvious: she's an ideologue, not a reporter.

But the plot thickens. Not only has Ms. Lithwick's ideological reporting become the subject of fawning praise and prizes, despite my our lonely efforts to undermine her, but the Roberts Court's supposed pro-business slant is back in the news because an article co-authored by Blog-favorite Richard Posner and published in none other than the Minnesota Law Review (my baby!) purports to prove it for all time. Adam Liptak has the story in the New York Times.

I remain unconvinced. Once again, the main cases trotted out to establish the Roberts Court's pro-business bona fides are cases involving class actions and arbitration. I've read many articles on this topic, but none (other than my own, of course) notes that pro-arbitration and anti-class-action policies are clear favorites of federal statutory law:

Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

So we have a pro-business Supreme Court, sure, but only to the extent that we have pro-business laws because we are a pro-business country full of pro-business people. I think I speak for the clear majority of Americans when I say to you anti-business people: Deal with it, commies.

A Grudge

I am a pretty happy-go-lucky kind of guy, but I do hold a few grudges. “Grudge” might not be quite the right word, but it’s the word I’m using so you’re just going to have to live with it. I’m talking about things that happened to me long enough ago that I should have forgotten about them, yet which still float up into my consciousness and bug me at fairly regular intervals.

Let me give you an example. Like many of my stupid grudges, this one is related to referees. I have a slight scar on the back of my hand from being slapped so hard during a men’s league basketball game that a blood vessel burst (or something—I’m not a doctor). To my ears, the sound of the guy viciously slapping the back of my hand rang out like a gunshot. But no foul was called. Instead, the other team gathered up the loose ball and took it the other way for a layup. Sometimes I see this strange little scar on the back of my hand and I get really angry. Not at the guy who slapped me, but at the referee. How could he not call that? Grrrwaraaah!

That was to give you an example of how trivial these grudges of mine are. Objectively, this is a stupid thing to have any emotion about fifteen years later. But it’s there.

Now here’s one I wanted to write about today, in the hopes that writing about it would expel the lingering bad mojo. This one starts on September 11, 2001. As you may recall, that was the day when the henchmen of Osama Bin Laden, one of history’s biggest assholes, hijacked a bunch of planes and used them to murder thousands of Americans. Those events led more or less directly to two wars and serious restrictions on our civil liberties, particularly at airports.

On January 1, 2005, I was at the airport in Minneapolis dropping off a friend who had come to visit. I was driving my wife’s car because my car became trapped in the garage when one of the garage door’s gigantic, industrial-looking springs snapped for no reason. (This is the kind of stuff that happens during the winter in Minneapolis.) Turns out those ancient garage doors weigh about 7,000 pounds. Luckily, my wife had been out running errands at the time, so we didn't need to call the garage-door fixer on the holiday.

After I dropped my friend off at the airport, I headed home. Just as I was pulling onto the highway, I saw an airport police car’s flashing lights in my rearview mirror. I had been in the process of merging left-to-right onto the highway when I saw this, so I continued that process. As it dawned on me that I was actually being pulled over, I merged over the other two lanes and came to a stop on the right shoulder.

The airport cop eventually approached. She was clearly angry at me. “Why didn't you pull over to the left?” was her important initial query.

“I was taught to pull over to the right,” I responded, truthfully. I was really confused. For a moment I thought that I had been pulled over for not pulling over correctly. The word “kafka” flashed through my thoughts.

“No,” said the airport cop, “you pull over to the nearest shoulder. What you did was unsafe and I could ticket you for it. You could have caused an accident!”

Now I was pissed. So many possible responses occurred to me. This will surprise you, but I am kind of a smart ass. Unfortunately the presence of police officers seems to bring this trait out rather than suppress it. Here’s what I went with:

“Well, I’m sorry, but I don’t have much practice getting pulled over.”

Needless to say, this didn't go over so well. But I was being pulled over for the dastardly deed of driving a car with expired plates. (You’ll recall at this point that this was my wife’s car. We were able to save the marriage.) So I was not in great legal jeopardy.

Here’s what still bugs me about that day. Our nation was fighting wars that day in two different countries. And those wars traced their casus belli to hijacked airplanes. And this was an airport cop, presumably tasked mainly with helping ensure that the events of 9/11 could never recur. But here she was, training her attention on ... the color of the tabs on my (wife’s) car! How could this be justified?

How can this be justified? The question rings out whenever I think of airports, or airplanes, or cars, etc.

I mentioned above that my grudges are over trivial matters. In writing this one out, though, I see now that it truly is a tale of abhorrent injustice. The amazing thing is that I manage to live my life at all, having been so wronged.