by David Kopel
One of the reasons behind public cynicism about the law is the tendency of legal journalists to describe cases purely in terms of "liberal" versus "conservative," rather than in terms of legal reasoning.
For example, a June 29 Associated Press story by David Kravets (printed in the Rocky Mountain News) called the 9th Circuit Court of Appeals "liberal" because the court had ruled "in a case from Idaho that motorists there can drive high on marijuana if they do not drive erratically and can pass a field sobriety test."
Although the AP made it sound like the 9th Circuit was inventing a bizarre new right, the ruling was simply a straightforward, nonideological interpretation of the particular language of an Idaho statute, which banned driving under the influence of "narcotics." (Chemically, marijuana is not a narcotic.)
Similarly, New York Times reporter David Stout (reprinted in the News, June 25) asserted that it was "somewhat surprising" that "conservative" Justices Antonin Scalia and Clarence Thomas had joined Ruth Bader Ginsburg's majority opinion requiring that fact-finding for death penalty decisions be done by juries. The Scalia/Thomas votes should not have been "surprising" to anyone who pays attention to judicial philosophy. Scalia and Thomas are literalists and traditionalists when it comes to statutory and constitutional interpretation. As a result, they have been skeptical about attempts to take away traditional jury fact-finding powers.
The Scalia/Thomas votes on the death penalty fact-finding case were telegraphed quite plainly by their votes in a major 2000 case, Apprendi v. New Jersey. There, the court majority ruled that in order for a person to be subject to extra punishment because his crime was a "hate crime," the finding had to be made by a jury, not a judge. In Apprendi, the literal-minded Scalia wrote: "The guarantee that 'In all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury' has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury."
Sometimes judges do make decisions on the basis of politics rather than law, but not nearly so often as the media imply.
Both the News and The Denver Post (July 2) covered the EPA's decision to eliminate, for this year at least, federal Superfund payments for cleanup of a polluted site near Vasquez Boulevard in Denver. The Post asserted the Superfund came "from a special 'polluter pays' " federal tax which expired in 1995. To the contrary, some of the Superfund taxes applied to petroleum and to chemical feedstocks, while other Superfund taxes applied to all corporations. In no case were the taxes tied to whether the corporation had ever polluted anything. Unlike the Post, the News acknowledged the Bush administration argument that the Superfund tax was not "fair to companies that play by the rules and don't pollute."
The News and the Post both wrote that without the Superfund, "taxpayers" would have to pay for the cleanup. Well, all the corporations that had their pockets picked by the Superfund tax - to pay for fixing problems they didn't cause - count as "taxpayers" too.
A Boston Globe story by Sue Kirchhoff, reprinted in the June 13 Post, said that Republicans in Congress argued that "failure to make the estate-tax repeal permanent was an 'immoral' move that essentially amounted to a tax increase on millions of Americans." Notice how the quotes around "immoral" in effect warn readers not to take the Republican argument seriously.
Contrast this with the Democratic argument summarized two paragraphs earlier in the story: "The loss of revenue would make it impossible for the government to create a Medicare prescription drug benefit, shore up Social Security or improve education programs, Democrats said." No scare quotes around "impossible," even though the claim is factually ridiculous.
News sports columnist Dave Krieger (June 25) complained that professional sports team owners' "Chasing last dollar is chasing away fans." The same point might be made about the comics section in The Sunday Denver Post.
A recent Sunday found two separate one-page advertisements wrapped around the left margin of the Sunday comics. On the right margin - obscuring half of the front page of the comics - was another advertisement that couldn't even be removed; unlike the left-side ads, the right-side ad was joined to the comics page. Between the left-side and the right-side ads, the visible front of the comics was less than 2 inches wide.
The unremovable right-side interferes with reading and folding the front page of the comics. It's even worse than a pop-up ad on a Web site, since at least you can get rid of the pop-up. The Sunday Post has a great variety of comics, but the ads are so intrusive that I prefer to read the comics in the Boulder Daily Camera.