To be or not to be [brilliant]

Judge Kavanaugh is in line to replace Justice Kennedy on the US Supreme Court. The nomination dance is about to begin in full force. Critics will raise questions about past cases, judicial temperament, law and the judicial role; and supporters will point to his past accomplishments and the judge’s professed belief in judicial restraint [and general support of conservative causes and ideas]. There is one fact upon which critics and supporters will agree: he is brilliant. Not smart; not clever; not bright; not astute.

BRILLIANT (and yes, I pulled out a thesaurus for help).

This post is a confession on my part. I don’t know what “brilliance” means. I’ve met a lot of brilliant people in my life, but the reason I know they are brilliant is because they tell me so, or others tell me in their stead. And as soon I think I have a handle on what it means, one of our esteemed justices retires and I am back to square one. Let me explain.

Judge Kavanaugh is brilliant, which we know because we are told incessantly. What exactly qualifies him for the distinction is less clear. Here’s what we know: he is a graduate of Georgetown Prep, Yale College and Yale Law School; clerked for Judge Kozinski and Justice Kennedy; worked for the Justice Department and the White House; was a partner at Kirkland & Ellis; and served as judge on D.C. Circuit since 2006. He clearly checks all the boxes for a seat on the Court. But that’s not the question. The question is, is he brilliant, and what makes him so? I can’t tell.

For another recent example, consider Justice Gorsuch. Same story: Georgetown prep, Columbia University, Harvard law, and a Marshall Scholarship at Oxford, where he earned a degree in legal philosophy; clerkships with Judge Sentelle and Justices White and Kennedy; DOJ; judge in the 10th Circuit since 2006. And also brilliant.

So here’s what I have: brilliance lies in elite academic achievements and fancy clerkships and jobs post-graduation. That is, Harvard and Yale graduates are brilliant; lawyers at DOJ and the White House are brilliant; circuit court judges are brilliant. Or in fairness, maybe is the confluence of all of these. So a brilliant person is one with Harvard, plus fancy clerkships, plus a DOJ position, plus a judgeship on his resume. That must be it.

But then I go back to the spring and summer of 2009 and the nomination of Justice Sotomayor. To refresh our memories: Sotomayor was born in the Bronx of parents both born in Puerto Rico. She attended Cardinal Spellman High School in the Bronx and was valedictorian of her graduating class; attended Princeton University on a full scholarship and graduated summa cum laude and Phi Beta Kappa; and attended Yale Law School. She was an assistant district attorney in New York County and later became partner in Pavia and Hartcourt. She served as judge in the U.S. District Court for the Southern District of New York from 1992 to 1998; and on the 2nd Circuit Court of Appeals from 1998 to her nomination to the Supreme Court in 2009.

She matches up fairly well on paper with both Gorsuch and Kavanaugh. But pundits and the legal community responded to her nomination very differently. Not only was she not “brilliant” in the traditional sense, she was “not nearly as smart as she seems to think she is.” Her qualifications for the seat were questioned openly. Critics accused President Obama of sacrificing “biography over brain.”

Unsurprisingly, the claims do not stand up to empirical analysis. Justice Sotomayor’s stint as appellate judge matched up with her peers as well as judges widely considered “brilliant.” More importantly, can any of those critics look at her body of work on the Supreme Court and consider her an exemplary justice, or at the very least, on par with all the others? And yet, “brilliance” was not a word used during her nomination, but the opposite was true. Something is amiss.

Here’s what I think is going on. Yes, merit is socially constructed. No question. This means, more crucially, that merit is not an intrinsic individual quality, akin to the way we think of IQs or personality traits, but a mark of status within a community. We cannot begin to think about “brilliance” outside of the communities within which the moniker is used. This is why Judge Sotomayor was never accorded the honor that the label bestows. She was an outsider, even as she achieved honors at Princeton University, honors that, incidentally, neither Gorsuch nor Kavanaugh achieved. But they didn’t need fancy labels for those in the community to know how brilliant they were. Who needs summa cum laude or Phi Beta Kappa to see those things “we” already “know”?

And yes, this also means that people of color, as outsiders, are swimming against the tide.  As Justice Sotomayor herself once put it, “I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of the worlds I inhabit. I am always looking over my shoulder wondering if I measure up.”  Or President Obama, who once told us of his “constant, crippling fear that I didn’t belong somehow, that unless I dodged and hid and pretended to be something I wasn’t I would forever remain an outsider, with the rest of the world, black and white, always standing in judgment,”

An applicant of color is seldom if ever “brilliant,” and becoming so is never easy. Some never do. This is true even for those people of color who dare become Supreme Court justices, or president of the United States.

[cross posted in Race and Democracy]

World Cup refereeing as constitutional interpretation

The World Cup is underway in Russia (smh). For some reason, not a game goes by when I am not reminded of our very own US Supreme Court and how it interprets the Constitution.  This cartoon from the Guardian neatly captures why:

This is constitutional interpretation in a nutshell.  The triumph of the conservative revolution is to make so many people believe this is not so.

Initial thoughts on Gill v. Whitford, the Wisconsin Gerrymandering Case

The US Supreme published its long-awaited decision in the Wisconsin gerrymandering case, Gill v. Whitford.  Gill could have been a landmark decision about American Democracy.  But the Court declined the invitation and sent the case back to the lower court to give plaintiffs the chance "to prove concrete and particularized injuries using evidence . . .  that would tend to demonstrate a burden on their individual votes."  The decision is baffling for many reasons.

First is the Court's use of history.  The opinion takes us back in time, to the 1960's and Baker v. Carr through the 2000's and recent gerrymandering cases that have refused to settle this question.  The Court concludes from this history that a legal standard is neither obvious nor preordained  by the Constitution.  But this history offers a more important lesson.  The one person, one vote standard, while maybe obvious as a matter of public opinion, was not demanded by the Constitution either.  Reynolds v. Sims picked that standard out of a hat, and then enforced it across the nation.  And here's the thing: the response by the public and affected actors alike was nothing short of astounding.  And in the process, the Court's public esteem grew.  There is no reason to suggest that history won't repeat itself.

Second is the Court's puzzling passivity in the face of a problem it has confronted before.  In Gill, the Court remands the case to the lower court due to a lack of standing.  To the Court, the plaintiffs have yet to show that they are individually harmed by the Wisconsin plan.   Standing scholars will no doubt have much to say about this.  But Gill is not new, nor terribly complex.  Again, a dose of history goes a long way.

Before 1961, the Court refused to decide these questions and hid behind the "political question" doctrine and the apparent "lack of judicially manageable standards."  Baker v. Carr changed all that by the mere invocation of equal protection principles.  The Court only needed to posit that "[j]udicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if, on the particular facts, they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." It was that simple.  Mere words did the trick.

A few years later, in Reynolds v. Sims, the Court went further and imposed a standard of population equality.  This meant that all districts must have the same number of people.  But the "intelligent man" on the Court new better.  As Justice Harlan wrote in dissent,

Stripped of aphorisms, the Court's argument boils down to the assertion that appellees' right to vote has been invidiously "debased" or "diluted" by systems of apportionment which entitle them to vote for fewer legislators than other voters, an assertion which is tied to the Equal Protection Clause only by the constitutionally frail tautology that "equal" means "equal."

"One person, one vote" was not required, much less demanded, by the 14th Amendment.  But it soon became the law of the land.  And the country embraced it.

This is important for what it did to the political question doctrine. The doctrine was part and parcel of the Court's passive virtues, ways to relief pressures not of the Court's own making.  But Baker domesticated the doctrine. It brought within law an inquiry that served prudential goals. It demanded reasons for an inquiry designed to operate outside legal doctrine.  But that did not mean that there was no longer a need for the political question doctrine.  The Court must still have a way to rid itself of cases when prudence demanded it without giving the impression of fear and powerlessness.  And it settled on standing doctrine.

The conservatives on the Court want to return to the political question world that Baker left behind, a world where "judicially manageable standards" are unavailing.  They also do not wish to overturn Baker, so they must walk a very thin tightrope.  For proof, take a quick look at Vieth v. Jubelirer, the 2004 Pennsylvania gerrymandering case, to appreciate how hard Justice Scalia had to work to dismiss any and all standards offered by plaintiffs, social scientists, and dissenting justices alike.  The conservative justices do not want any part of this, but they also don't want to concede any judicial ground, lest the "intelligent man on the street" come to think of them as weak or unprincipled.  Hence the need for the passive virtues.  Hence the need, that is, for standing doctrine.

Viewing Gill through this lens raises many questions.  Why does a unanimous opinion invoke standing doctrine and remands the case to the lower court to see if these plaintiffs are sufficiently harmed under standing doctrine?  Why not simply dismiss the case on standing grounds, as Justice Thomas argues?  More generally, why not simply invoke a lack of standards once and for all, rather than continue moving the issue forward?  Why the apparent need for prudence and the passive virtues here? What troubles the conservative justices in this area?

Gerrymandering cases are not different from any others.  So what in the world is going on, Justice Kennedy?  What are you afraid of?

[Cross posted from Race and Democracy]