Ask the author: A critique of a concept – Dorsen on Justice Scalia’s jurisprudence
on Apr 13, 2017 at 11:12 am
The following is a series of questions posed by Ronald Collins on the occasion of the publication of David M. Dorsen’s “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions” (Cambridge University Press, 2017, pp. 375).
After graduating from Harvard Law School, Dorsen spent five years as an assistant United States attorney in the Southern District of New York in the criminal division under Robert M. Morgenthau; for four years he served as the deputy or first deputy commissioner in the Department of Investigation in the administration of Mayor John V. Lindsay of New York City; and for two years he served as assistant chief counsel of the Senate Watergate Committee under Sen. Sam Ervin (D-N.C.) and Samuel Dash (chief counsel) in 1973-74.
His previous book was “Henry Friendly, Greatest Judge of His Era” (Harvard University Press, 2012), which won Green Bag’s award for “exemplary legal writing.” (See here for a video-recorded 2012 discussion between law professor Alan Morrison and Dorsen about Judge Friendly.)
Dorsen wrote his latest book with the cooperation of the justice. The two first met in 1958 at Harvard Law School. In the years that followed, they became close friends.
Welcome, David, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book, which is quite extensive in its examination of Justice Scalia’s jurisprudence.
* * *
In 2002, after my wife and I had sufficiently recovered from Bush v. Gore, she and I invited Nino and his wife Maureen for dinner. Despite the fact that we were ardent liberals and disagreed with the Scalias on virtually everything imaginable, we all had a great time. From then until Nino’s death we got together frequently, usually for a dinner for four at our house in Washington, but also theirs, and, with or without wives, to go to the opera, baseball games, and horse races.
– David Dorsen, “Remembering Justice Scalia” (Feb. 10, 2017)
Question: How and why did you pick the title and subtitle of this book?
Dorsen: I initially thought about doing a biography of Scalia, but we both decided that we were too close friends. I started reading his opinions to do a comprehensive book on his judicial philosophy and discovered a wealth of liberal opinions. He liked the idea of my doing a book that focused on them. He felt he was not getting enough credit for writing them.
The title was designed to express where the book was coming from. I tried to do a balanced book, very negative on originalism but rather positive on Scalia’s following it where it took him. He was, after all, very conservative personally.
The publication process
Question: The much-revered Mike Aronson of Harvard University Press was your editor on the Friendly biography and, as you put it, “on this book” too. How, then, was it that the Scalia book was published by Cambridge University Press instead of Harvard University Press?
Dorsen: Mike was very positive on the book and excited for Harvard to publish it. He was shocked that Harvard turned it down. It seems that Harvard was not willing to publish a balanced book on Justice Scalia.
Question: The law offices of Sedgwick, LLP (where you are of counsel) “supported [your] writing career,” including your latest book. Law firms don’t typically do that. Tell us about that arrangement.
Dorsen: I made that arrangement with the firm Wallace King, which Sedgwick absorbed as its Washington office. I had practiced law there for a number of years. We had a great relationship from the start. They thought it was fun as well as a public service to have a house scholar and author. Sedgwick kept the arrangement in place and even gave me thousands of dollars for a limited book tour for the Friendly book.
The Murphy biography
Question: In reading your book, and in referencing the nearly 100 pages of endnotes, I do not recall seeing any mention of Bruce Murphy’s 675-page “Scalia: A Court of One,” published in 2015. Why? And what is your sense of that biography?
Dorsen: I thought I mentioned it once. It was a bad book. It was hell-bent on the negative and rejected anything positive about Scalia. Murphy spent considerable time on Scalia’s speeches and questions from the bench, neither of which I considered reliable indicia of his judicial philosophy, instead of his law-review articles and his opinions. There was nothing in the book’s discussions of cases that I could use. The author is not a lawyer and did not understand Scalia’s jurisprudence, at least in my opinion.
Obviously, there was a lot written about Scalia that I was happy to use and credit. Most of it was in the form of law-review articles. One important source was the writings of historians in books as well as articles. I find them far more reliable than lawyers when it comes to analyzing originalism. There was no recent book that explained Scalia and his originalism and textualism. The latter relies almost exclusively on the language of statutes, rather than any underlying purpose behind it or legislative history. My book contrasts originalism/textualism with other ways of approaching the Constitution and statutes.
Critique of Originalism
Question: Judge J. Harvie Wilkinson supplied one of the blurbs on the back cover of your book. Your book, he wrote, “could well prove to be the definitive review of Justice Scalia’s vast body of work.” By that measure, yours would also seem to be the most comprehensive and largely critical assessment of the justice’s jurisprudence. You have said of Scalia that while you “respected his convictions,” you nonetheless “found his originalism an intellectual disaster.” Is that why you wrote this book, to prove that point?
Dorsen: In part. Although I broadly disagreed with Scalia’s personal and judicial philosophy, he is a very important figure and justice. It is not easy to figure him out. I wanted to present his philosophy fairly. It is critical for the development of the law that we understand seminal legal figures, both scholars and judges. Scalia was very supportive of my effort, although there were so many questions that I would have liked to have asked him. He liked the idea that a liberal was writing the book and looked forward to debating me on it.
I oppose originalism as the proper way to apply the Constitution, and most of my book explains why. In fact, I hope originalism goes the way of the dinosaur, which it resembles in some respects. I believe that Scalia’s greatest and lasting contribution will be in the realm of textualism, which primarily relates to the interpretation of statutes and not the Constitution.
Question: You label Scalia “a qualified originalist,” a “selective originalist,” a “passionate originalist,” and a “tempered originalist,” in contrast to a “strict originalist.” In a nutshell, why?
Dorsen: He readily acknowledged to me that he was not an originalist in some areas of the law. Perhaps the most important was freedom of speech. In other areas, Scalia was primarily a textualist rather than an originalist. Take a defendant’s right to confront witnesses against him. Before Scalia led the fight to prevent the introduction of testimony of a witness who had not been subject to cross-examination, there were all sorts of exceptions, including that the testimony bore indicia of reliability. Judges used that exception to let in all sorts of hearsay. It meant whatever a judge wanted it to mean, so the same facts were used both to demonstrate and reject reliability. But Scalia’s reform relied largely on the dictionary meaning of “confront.” That is textualism. An originalist would have looked to see what the practice was in 1791. Scalia did not do that. In fact, it is almost impossible to figure out what that practice was.
I must add that all judges rely on history to construe the Constitution, but they also use precedent and other sources, including current values. The problem with originalists is that they exclude everything but what the Constitution was understood to mean in 1789 or when a particular amendment was adopted. I’ll just mention another example where Scalia rejected a strictly originalist approach, the takings clause and its application to regulatory takings. He chose a textualist approach rather than an originalist approach.
Gorsuch, Scalia & Thomas
Question: By way of a follow up to the last question, I take it your view is that labeling someone an “originalist” (such as Justice Neil Gorsuch) is somewhat misleading given the various gradations of that term as well as of those related to “textualism.” If so, do those of us in the legal community need to change our jurisprudential vernacular when it comes to such matters?
Dorsen: No. All we have to do is recognize that originalism gives only a partial description of someone’s jurisprudence. One fact that succinctly demonstrates the problem is that Scalia wrote 135 opinions that I classify as liberal. Scalia and the other originalist on the court during his tenure, Clarence Thomas, sat on 97 of those. Thomas agreed with just 49 of those. What that means is that two originalists, who trumpet that originalism provides an objective method of reaching a result, disagreed on half of a major group of opinions.
Historians scoff at originalism as miserable history. Some call it “law office history.” An example would be a partner in a law firm telling an associate: “Find something in ‘The Federalist’ we can cite to support this argument.” It insists on finding an answer when there may not be one and it starts from the answer and works backward. Sometimes there is no answer, sometimes there are many answers, such as the common situation in which the law and practices in states varied, such as with religion. One historian called the Supreme Court’s use of history “notorious.”
Lack of clarity is a major argument against originalism as well as a caution to commentators about the limited information provided by calling someone an originalist. There is even a school that purports to create a liberal originalism. I don’t think it works. First, it suffers from the same limitations that tarnish conservative originalism. Second, in almost every area of the law, we are more liberal today than were the founding generation, which denied all sorts of rights to all sorts of people.
As for Neil Gorsuch, who has proclaimed himself, more or less, an originalist in the Scalia tradition, I don’t know how much he knows or has thought about originalism. I personally would be happier if his Ph.D. was in history rather than legal philosophy. If he is going to be an originalist, I sincerely hope he is of the Scalia rather than the more rigid Thomas school.
Additionally, keep in mind that not everything can be decided by resort to originalism. The Chevron doctrine is one of those. It postulates that the courts should usually defer to statutory interpretations by the agency assigned by law to apply those statutes. Scalia was a big supporter of Chevron, which enhances the power of the executive branch. Gorsuch is not. Chevron led to some of Scalia’s liberal opinions as well as conservative ones.
One of the big differences between Scalia and Thomas has been their views on stare decisis. Thomas gives little or no weight to past precedent on constitutional issues. Scalia gave some. He rejected stare decisis in what he considered outrageous overreaching by the Supreme Court. This included abortion, death-penalty cases, right to die, and LGBT rights.
An important open question regarding Gorsuch is his position on stare decisis. Circuit judges are required to follow precedents of the Supreme Court and their circuit. Gorsuch’s views on stare decisis will be critical for his role on the court.
Originalism & the First, Second & Tenth Amendments
Question: As I understood your arguments, it seems that you hold that originalism did not inform much of Scalia’s free-speech jurisprudence and/or did not support it. You write of Scalia’s “failure to look to the original understanding or meaning of many First Amendment issues ….” Is your claim, then, that one of his greatest contributions to our constitutional jurisprudence was largely originalism-free?
Dorsen: His originalist jurisprudence did have gaps. Perhaps the most important one was the freedom of speech (aside from pornography). At the time the Bill of Rights was ratified in 1791 freedom of speech and of the press essentially meant no prior censorship. In other words, the United States government – remember that for scores of years the Bill of Rights was not applied to the states – had to let you say what you want, but could then punish you for having said it.
I agree with much of Scalia’s decisions on freedom of speech, at least in cases other than pornography (less so on the religion clauses). His first major free-speech vote was to join liberal Justice William Brennan’s opinion that struck down a statute that made it a crime to desecrate the American flag. In other words, it was okay to burn the flag as a means of disposing of it, but not as a sign of protest. For Brennan and Scalia restrictions on free speech could not be content-based. Incidentally, Scalia had taken that position when he was a judge on the D.C. Circuit.
Question: You devote five pages of text and three pages of endnotes to the court’s 2008 decision in District of Columbia v. Heller, which some see as Scalia’s finest and truest originalist moment. You disagree. Similarly, your assessment is critical of the justice’s seminal 1997 opinion in Printz v. United States, the 10th Amendment federalism case. In your judgment, what are the major weaknesses of Scalia’s majority opinions in Heller and Printz?
Dorsen: Bad policy and distortion of the historical record. I say that mindful of the hundreds, if not thousands, of pages I’ve read on the Second Amendment. Just about every reputable historian has concluded that the Second Amendment was intended and written to protect citizens’ and states’ rights against encroachment by the federal government. It was a reaction to giving the federal government power to raise and maintain an army and to declare war. States and many communities and individuals feared tyranny at the hands of the federal government. That went to the heart of the battle over confirmation of the Constitution and that is why the Second Amendment was so important to the citizenry, who feared the national government would be another England.
The debates at the time over the right to bear arms used that term in a military sense 95 percent of the time and not to refer to personal self-defense or hunting. “Bear arms” was a military term in that era, unlike “carry arms.” Scalia looked up the words “bear” and “arms” in a dictionary and that provided the answer. That was simplistic. Also, preambles were much more important in that era than now. Even the first chief justice of the United States, John Jay, said so. It goes on and on. The facts regarding gun violence were legally irrelevant to Scalia, but critical to many non-originalists. Scalia wouldn’t budge.
Printz is similar. The Anti-Federalists preferred delegation of federal functions to the states rather than an increase in what we would now call the federal bureaucracy. Once again the originalist history was flawed. The federal government did delegate tasks to the states, including taking the first national census. The history is complex, and law-office history doesn’t give valid answers. And once again, the advantages of delegation play no role in originalist thinking.
Question: Your evaluation of Scalia’s textualist jurisprudence is likewise quite unfavorable – e.g., as applied to the two 11th Amendment state sovereign immunity cases in which he joined. Can you say more about that?
Dorsen: It is important to note that Scalia was primarily a textualist rather than an originalist. Take a defendant’s right to confront witnesses against him. Before Scalia won the fight to prevent the introduction of testimony of a witness who had not been subject to cross-examination, there were all sorts of exceptions that allowed in sworn and unsworn hearsay, including that the testimony bore indicia of reliability. Judges used that exception to let in all sorts of hearsay. It meant whatever a judge wanted it to mean. But Scalia’s reform relied largely on the dictionary meaning of “confront.” That is textualism. An originalist would have looked to see what the practice was in 1791. Scalia did not do that. Actually, it is almost impossible to figure out what that practice was. The effort is complicated by the fact that today we look to cross-examination to derive the truth. In 1791 it was the sanctity of the oath. That is one of many reasons why originalism does not work. The context is entirely different. The early years of the Republic were a different country.
Question: Were there any Scalia opinions you found in which his textualist arguments were either persuasive or at least colorable? If so, why?
Dorsen: Plenty and many that were liberal. Textualism, first of all, does not have a conservative bias. It is neutral. Legislative history could favor either side, so disregarding it could help either side in a particular case. I think legislative history can be helpful at times. I don’t believe, as Scalia did, that its use is illegitimate any more than would citation of a law-review article be illegitimate. Scalia believed the role of Congress was to pass legislation and that the only thing it passed, and therefore the only thing on which the courts could rely, was the statute and the words constituting the statute. The problem, which Scalia saw, was that it is hard to draw the line between a proper and an excessive reliance on legislative history. I have a whole section of my book on statutes and textualism.
Separation of powers
Question: “To derive a rigorous requirement for [Article III] standing based on the structure of the Constitution,” you contend, “is not that different from Douglas’s penumbras and emanations in Griswold v. Connecticut which Scalia abhorred.” Why do you say that?
Dorsen: Scalia argued that separation of powers was probably the most important quality that made the Constitution successful. He made that point at the start of his confirmation hearings. He noted that the Soviet Union’s bill of rights was a model of guaranteeing freedom, but a sham in practice.
Separation of powers is not mentioned in the Constitution and it is difficult to apply. A fundamental problem is that there is no strict separation of powers in the Constitution. The president nominates judges and the Senate confirms or rejects them. The president negotiates treaties and the Senate confirms of rejects them. The chief justice presides over the trial of an impeached president. There are a couple of other instances. The important question for me and others is whether those situations are the outer limit of permissible “violation” of separation of powers or examples of the kinds of incursions that the Constitution accepts. I don’t think there is an originalist answer. As a result, you are trying to nail down smoke when you try to make difficult decisions on separation of powers based on an original understanding.
King v. Burwell: An upsetting opinion
Question: “Scalia told me,” you write in an endnote, “that King v. Burwell upset him considerably.” The reference, of course, is to Chief Justice John Roberts’ opinion in the Affordable Care Act case. Can you expand on what Scalia said to you about this opinion and why it troubled him?
Dorsen: Scalia cared a lot about words and their meaning. He was positively offended when he saw what he considered a distortion of the English language. The Affordable Care Act dealt with federal and state exchanges. To him they were distinct. Yet Chief Justice Roberts, he believed, was equating the two or at least ignoring the distinction. Scalia said the language “established by the State” was not ambiguous and could not be construed to include exchanges established by the federal government. No considerations of the intent of Congress or the meaning of the document as a whole cut it for Scalia. He told me that he felt that that was an indefensible distortion, the worst he had ever seen in a Supreme Court opinion.
Canons of construction
Question: As you present it, “Reading Law: The Interpretation of Legal Texts” (2012) by Scalia and Bryan Garner is a work whose thesis is “doomed to fail.” Even so, and as Josh Blackman has noted, the court has cited that book approvingly several times, and during oral argument in King v. Burwell then-Solicitor General Donald Verrilli referred to it as a “learned treatise.” How do you explain this?
Dorsen: It certainly is learned in the sense that it tries to create, or at least explain, a methodology for reading texts, especially statutes. It scours the literature. There are some wonderful insights in the huge volume. The book, however, is based on a long list of “Canons of Construction” to interpret statutes. Some of them generally work well. For example, you cannot read the words of a law or contract out of context. What is a “bat” depends on whether you are writing about baseball or caves. Another is that words are to be understood in their ordinary meaning unless the context suggests otherwise. These are helpful, although rather obvious. Less so are the canons, “Distributive phrasing applies each expression to its appropriate referent” (p. 214), and “An unintelligible text is inoperative” (p. 134).
My major problem, however, is the lack of legitimacy of canons. People do not ordinarily write or read with canons in mind, so it fails as an interpretive system. Unless everyone, including Congress, writes and reads with the assumption that the canons govern construction of the text, they are not a reliable guide to meaning. Abner Mikva, who was a congressman, senior White House official, and court of appeals judge, said the only “canons” he remembered from his days in Congress were the ones the Defense Department bought that couldn’t shoot straight.
Judge Friendly & Justice Scalia
Question: In what fundamental ways were Friendly and Scalia different in their respective judicial philosophies and temperaments?
Dorsen: Friendly was essentially a pragmatist. He was looking for the best solution and would struggle to find it and support it. He was very rarely an originalist. I can recall only one rigorously originalist opinion where the issues was whether “counsel” when used in the context of right to counsel required the person to have been formally admitted to the bar. Friendly’s answer, based on historical research, was yes. Incidentally, Friendly almost became a historian rather than a lawyer.
Friendly was also a textualist in the sense that he paid a lot of attention to the words, but he relied on other indicia of meaning, including legislative history. One quality of Friendly’s is that he cared enormously about the result, which Scalia said that originalists and textualists should not do. I could write another book comparing the two. I should hasten to add that with one or two exceptions, Friendly found support in the law for all his opinions, although he went to enormous lengths to distinguish contrary authority.
Question: Frigaliment Importing Co. v. B.N.S. International Sales Corp. (S.D.N.Y. 1960), was one of Friendly’s most famous opinions. This, of course, was a contracts case concerning the definition of the word “chicken.” How do you think Scalia would go about interpreting the term in question there? What rules, what canons? Same result?
Dorsen: Fascinating question that, needless to say, I had not considered. The problem in the case was whether the word “chicken” meant any chicken or a young chicken. Friendly approached the problem creatively. He noted that negotiations were between German-speaking parties and examined the German language, which supported the young-chicken construction. Scalia would have done that too, I believe. Friendly also looked to the prices of young versus old chickens to decide which birds the contract referred to. He concluded that the fact that both parties expected to make money from the transaction tended to dictate one result.
I’m not certain that Scalia would have accepted that test. For him, language governed, not consequences, although he might have cited a few canons along the way. In Frigaliment the word “chicken” had a specialized meaning. Scalia also would have relied on Department of Agriculture and contemporary private publications to reach the same result as Friendly.
Question: You devote a fair amount of attention to Scalia’s approach to interpreting statutes. What do you think were the respective strengths and weaknesses of that aspect of his jurisprudence?
Dorsen: I have already discussed some of this subject. Ignoring legislative history would mean that the parties would not cite legislative history, which would mean that lawyers would not research legislative history, which would mean that clients would get smaller bills. That is an important reform. The difference in results would rarely be substantial.
An important practical point that Scalia made is that people should know what the law is. They should not have to research legislative history to learn their rights and obligations. This is a good point, especially in criminal cases. Scalia was a leader in enforcing the rule of lenity, which requires courts to rule for the defendant in a criminal case when a statute was ambiguous. Scalia’s approach, however, removed a useful arrow from his quiver, namely, the absurdity doctrine. Briefly, that doctrine allows judges to reject results that were absurd. Friendly employed that doctrine, Scalia rejected it except for the narrow exception of “scrivener’s error,” a mistake in copying, but not otherwise. He considered the doctrine subjective. I think he went too far. There are cases where it is obvious that a word or punctuation was inadvertently added, left out or misplaced. I don’t think you have to be rigid. Textualism is generally a good influence, but it is too unforgiving.
I’ll give one example of a statutory opinion by Scalia. It’s one I like. A federal statute enhanced a sentence for a defendant who “used” a gun in connection with a narcotics offense. One case (Smith v. United States) involved a defendant who traded a gun for narcotics and the issue was whether the defendant “used” the gun. Six justices upheld the sentencing enhancement largely on the basis of the dictionary definition of “use.” Scalia dissented, stating that the ordinary understanding of using a firearm meant using a firearm as a weapon. In any event, he said, the issue was subject to doubt and required employment of the rule of lenity. My book notes that Scalia’s approach was almost 180 degrees from his approach in Heller. But it deviated from his approach in Heller to reach a liberal result. This is one of the many cases I would have liked to have discussed with Scalia, but could not. Scalia also wrote opinions favoring plaintiffs in employment-discrimination cases, in bankruptcy cases and in a voting-rights case.
Question: Scalia’s originalism, you argue, “almost certainly was a jurisprudence that inhibited him from reaching more conservative results, at least in a number of significant areas.” If so, why did it restrain him in some areas but not, as you point out, in other areas?
Dorsen: Usually, he had a specific constitutional provision, such as the Second Amendment or Eighth Amendment, to rely on for both his conservative and liberal positions, and those amendments meant no more and no less than they meant in 1791. That is why, for example, Scalia opposed abolishing the death penalty for minors and the mentally ill. Scalia relied for his liberal constitutional opinions on the confrontation clause and the right to trial by jury. He vigorously argued that if something was not mentioned in the Constitution, there is no such right. These included the right to an abortion, gay rights and the right to die. I believe that that approach is too rigid and is unwarranted.
Today’s issues and society are too complex to be squeezed into the understandings of the eighteenth century. Thinking in 1791 can only teach so much in deciding whether the use of a heat sensor on the outside of someone’s house without a search warrant violates the Fourth Amendment.
These are subtle and complicated issues on which James Madison can shed very little light. For example, Scalia and especially Thomas rejected affirmative action except as applied to blacks and African-Americans. But the 14th Amendment is not restricted to blacks. So the textualist argument fails. (Incidentally, Scalia did exactly the opposite of what he did with the takings clause, mentioned above.) Moreover, there was affirmative action in the aftermath of the Civil War. The Freedman’s Bureau was one instance.
I’m not saying that Scalia was entirely consistent. He wasn’t. But he usually had a reason for making distinctions. My biggest quarrel with him was his position that the Constitution prohibited recognizing new rights, especially in a world that bore little in common with the late 18th century. For most purposes that was a different country. It would be like relying on the law of India today. A second argument is that originalism does not provide reliable answers, or, if one is honest, provides no answers at all.
The “threat of originalism”
Question: You end your book with this line: “The threat of originalism remains.” What do you mean by that?
Dorsen: As I’ve said, originalism is a terrible philosophy if you believe in human rights and liberties. Scalia acknowledged that nothing in the Constitution itself required adoption of originalism as the method of interpreting the Constitution. He also believed strongly that positions of the framers that were unexpressed in the Constitution are of no importance to its interpretation. What the framers might have wanted, but did not say in the Constitution, was therefore irrelevant to him on this issue.
In my opinion, the framers spent almost no time thinking about how the Constitution would be interpreted decades down the road. They had more immediate problems. Scalia adopted originalism because he liked where it took him and believed that it was consistent with his understanding of what a Constitution is supposed to be, which is an anchor. If you want to change the Constitution, he said, amend it.
For me, the fact that the Constitution mentions capital punishment does not mean that today’s judges cannot decide that it is cruel and unusual. The fact that “commerce” may have had a narrow meaning in 1788 or 1789 should not mean that the Affordable Care Act is unconstitutional. The Constitution has to have some flexibility. By and large, the courts, especially the Supreme Court, have been a positive influence, at least in my view. I’d hate to have a Supreme Court that felt it could not issue Brown v. Board of Education or enforce rights for the LGBT community, because education was segregated in 1868 (although that can be debated) or the Bill of Rights does not explicitly protect gays. That is far too big a price to pay for any philosophy, especially for discredited originalism.
Works in progress: two more books
Question: Tell us a about the other books you have in the hopper.
Dorsen: I’m working on two books. One is a novel, which I’m learning is very different and much more difficult to write than nonfiction. It is about a libel suit brought against Donald Trump based on one of his tweets. The central character is a federal district judge, whose wife has just died and to whom the case is assigned. Actually, I started the book five years ago and my focus was on the Tea Party. I all but gave up on the project until Trump was elected and I rewrote it. I’m now working with a professional editor, something I did not need with my first two books but certainly need for writing fiction.
The second book is scrupulously based on court records in a case in which I have been involved as a lawyer since January 2012. The book describes the tribulations of a former hedge-fund manager, Michael Lauer, whom the FBI and the Miami office of the SEC (which had never handled a hedge-fund matter before) relentlessly pursued, starting in July 2001. The SEC’s Miami office filed a civil enforcement suit against Mr. Lauer in 2003, even though he operated exclusively out of New York and Connecticut. At the request of the SEC and a court-appointed receiver (who was required to be neutral, but considered himself an arm of the SEC in violation of separation of powers), the district judge froze every dime Mr. Lauer had. As a result he could not afford an attorney, so he had to proceed pro se against the combined efforts of the SEC and receiver. In the middle of the civil case, the Justice Department indicted him. The trial judge in the SEC case would not let Mr. Lauer use his own money to defend himself, so he had to rely on a public defender. The jury nevertheless acquitted him in 2011, but he was ruined financially.
All in all, the district court in the civil case ruled on 136 contested motions between 2003 and 2016, including discovery motions, motions to relax the total freeze order, and motions to resolve the case. The record of the SEC and receiver is 136-0; Mr. Lauer won zero. The court of appeals ruled against Mr. Lauer all seven times we sought relief from adverse district-court decisions, including a petition for a writ of mandamus to disqualify the district judge for bias after he denied a motion to disqualify him for conducting his own factual investigation. The case is still going on, so my book remains unfinished.
I am also working on an opera based on Ernest Hemingway’s “For Whom the Bell Tolls.” I am the librettist. There’s precious little law in that.