On Judging and "Classical Judicial Jurists"

A few nights ago, watching the Stanley Cup finals reminded me of the confirmation hearings for my colleague Dawn Johnsen to head the Office of Legal Counsel. During her exchange with Senator Sessions, the Senator expressed the following view:

I think Justice Alito and Roberts have firm, classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench -- (inaudible) -- said about to radically remake the Constitution, it's the activists that are remaking the Constitution, not the classical judicial jurists.

It would be too easy to criticize this statement as sheer lunacy (note to self: send Senator Sessions a copy of The Attitudinalist Model Revisited and The Choices Justices Make). But that would be to give this view far too much credit. The better story here is how such a view is accepted in places that matter, like the U.S. Senate. And that, standing alone, is a triumph of the conservative movement.

Consider also Chief Justice Roberts' confirmation hearing, where he assured the Judiciary committee that

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

Unsurprisingly, this vision of his role died soon after his confirmation to the Court. He is not the limited judge he professed to be. It appears he never was.

Move this story ahead, to the upcoming racial "discrimination" case, Ricci v. DeStefano, or the Namudno case, which will consider the constitutionality of the special provisions of the Voting Rights Act. The same Chief Justice who professes to only apply the rules as they exist, and who abhors judicial activism, will decide these cases not on the law as it is written, but on the law as he wishes it to be.

This brings me to the Stanley Cup finals. After game 2, a star player received an "instigator" penalty for fighting during the last minute of the game. And the Rule seems pretty clear on this:

47.12 Instigator in Final Five Minutes of Regulation Time (or Anytime in Overtime) - A player or goalkeeper who is deemed to be the instigator of an altercation in the final five (5) minutes of regulation time or at any time in overtime shall be assessed an instigator minor penalty, a major penalty for fighting, and a game misconduct penalty (see 47.22).

The problem was, this was a star player, and to suspend him would place his team at a serious disadvantage. But rules are rules, right? Here's what his coach said after the game: "If he got an instigator in the last five minutes, I think there are rules that are clear. I don't know." However, here's what the league office said, in a statement issued an hour after game 2 ended:

None of the criteria in this rule applied in this situation. Suspensions are applied under this rule when a team attempts to send a message in the last five minutes by having a player instigate a fight. A suspension could also be applied when a player seeks retribution for a prior incident. Neither was the case here and therefore the one game suspension is rescinded.

Of course. Tell it to Chief Justice Roberts, or Senator Sessions.

So when you read Ricci and Namudno, think about stare decisis; and about the text of the Equal Protection Clause and Section 2 of the Fifteenth Amendment; and about the intentions of the Reconstruction Congress who drafted these Amendments into the Constitution. All of these "classical" sources of law will point you in the same direction. And yet none of these sources will matter to the "classical" jurists on the Court. They will vote to overturn the Second Circuit in Ricci, and they will likely vote to strike down the special provisions of the VRA in Namudno. And Senator Sessions will not call them "activists," because, well, they reached the right result (that is, a result with which he agrees).

I wonder if Chief Justice Roberts is a hockey fan. The NHL did him proud the other day. He could not have done it any better.

Institutionalism and Laissez-faire in Caperton v. Massey

The Supreme Court today determined today the circumstances pursuant to which the Due Process Clause requires judges to recuse themselves in Caperton v. Massey. In a 5-4 decision, the Court held that a judge must remove herself from a pending or imminent case if there is a great probability that the average judge would be biased because a person with a personal interest in the case has spent a disproportionate amount of money to get the judge elected. Justice Kennedy wrote the majority opinion and was joined by the four liberals. Chief Justice Roberts wrote the dissent for the four conservatives with Justice Scalia also writing a short dissent for himself. Over at Balkinization NYU Law's Rick Pildes has a very interesting post that I'd like to take a couple steps further.

Rick notes that Caperton is the latest in a long line of cases about the proper role for the Court in regulating the behavior of political institutions and actors. He argues that the Court is divided between the Justices who believe that political institutions must reflect certain democratic/constitutional values even where the Court has to promulgate vague and difficult-to-define standards to enforce those values and those who believe in a limited role for the Court in regulating the behavior of political institutions because bright-line rules cannot be established. This debate presents a tension between what Rick calls the Court's boundary-enforcing wing (defend constitutional values when political institutions have gone too far) and its bright-line wing (only enforce values where bright-line rules can be promulgated). I think this analysis is largely right and I want to use it as a jumping-off point for two observations.

First, notice that the argument in Caperton between what I'll call the institutionalists (Rick's boundary-enforcers) and what I'll call the laissez-fairists (Rick's bright-liners) is explicitly an instrumental one, perhaps more nakedly instrumental than we have seen before. The majority and the dissents are not arguing about the essential meaning of the Due Process Clause. They are not arguing about whether anyone's rights have been violated. Moreover, even though Justice Kennedy's opinion often anthromorphizes the Due Process Clause (see, e.g., all of "the Due Process requires" language), even he betrays that the purpose of his due process analysis is to protect the "integrity of the judiciary." Caperton is a case where the Court is explicitly arguing about structural values.

More tellingly, on the elements that factor into the manner by which judges decide cases, Kennedy pens: "Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work." Perhaps more revealingly, he writes, "to bring some coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings." (Emphasis mine). (Consider the preceding in the context of the Sotomayor nomination debate.)

The dissents are even more striking. Their principal argument against the majority is not that the majority has betrayed the text of the Due Process Clause, or precedent, or orginal meaning. There is not even a snide comment about the "logic, scholarship, experience, and common sense" line of the majority. Their major beef is that the majority's utilitarian calculus is wrong. Thus, Roberts complains that the majority opinion "will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Scalia concludes, the "relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernible rule. The answer is obvious."

The uninitiated would think that the relevant question is whether we understood the essence of the Due Process Clause or stare decisis, or precedence, or original meaning. No, the relevant question is whether the Court's instrumental interpretation of the Due Process Clause will lead to the majority's desired outcome--an elected judiciary that respects the democratic/constitutional value of judicial impartiality. It is almost as if in a case about judicial bias and the process of judging the Court pulls back the curtain a bit to reveal the actors without their formalistic legal masks.

Second, these two categories--institutionalists and laissez-fairists--do not map at all perfectly onto the media's favorite categories--conservative and liberal. In this case, the liberals are playing the role of institutionalists. But in Shaw v. Reno, the racial gerrymandering case it was the turn of the conservatives. I suspect that if the Court strikes down section 5 of the Voting Rights Act, it will be the conservatives enforcing limits on congressional power on the vague notion that Congress has gone too far.

In addition to the implications for this type of analysis that Rick raises in his post, Caperton intimates that it might be worthwhile in constitutional law scholarship or in the field of law and politics to have more debates about democratic values. It may also be fruitful to engage in the type of empirical analysis that Nate Persily has recently pursued. For example, does it matter for either side's due process analysis if we establish empirically that the public's faith in the judiciary is unaffected (or conversely completely shaken) by large contributions from interested litigants to judges hearing those cases? To paraphrase Scalia, to better understand this debate, we may need to identify the variables that makes the quest quixotic from those that make it worthwhile.

The End of the Voting Rights Act?

In the next few weeks, the spectacle known as the end of the Supreme Court term will be upon us. And with it, bizarre as it may seem, we will get answers to some of the most important and vexing questions of the day. I eagerly await for one answer in particular: in Namudno v. Holder, the Court will decide whether the special provisions of the Voting Rights Act remain a legitimate exercise of congressional power under the Fifteenth Amendment.

The puzzle began in 1965, when the Johnson administration devised a coverage formula that engulfed predetermined states within the special provisions of the Act. The formula itself seemed innocuous enough: the offending jurisdiction must use a literacy test as part of its voter registration process, and either its turnout rate for the 1964 presidential election or its registration rate on November 1, 1964 was below fifty percent. Once applied, the formula brought within the purview of the Act the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, as well as 26 counties in North Carolina.

To a cynic – and there were a few in Congress back then – the fact that these select jurisdictions came under the Act’s coverage must mean that the formula was nothing but an arbitrary ruse designed to penalize select southern jurisdictions. To the Supreme Court, however, the fact that these states were the worst known offenders corroborated the rationality of the formula.

The formula has remained essentially in place for 44 years. This is curious at best. How could this formula, intended as a temporary measure, remain unchanged for 44 years? The way that supporters of the Act defended the special provisions of the Act focused on their temporary nature; or as Representative Don Edwards, the House subcommittee chairman in 1975, “[t]he act that was the result of this frustration was a radical bill. It was bent on results without delay. It was also designed to be temporary. After a few years of harsh measures, the practices of a lifetime would be reversed and special Federal protection would no longer be necessary.” Are we to assume that none of the covered jurisdictions have improved in any noticeable way, and that voting problems have not surfaced elsewhere?

Maybe. But at the heart of the Namudno case is the question of institutional competence. Whether matters have improved or not, and whether the special provisions of the Act are no longer required, are questions for Congress to consider. These are questions of degree. These are also questions on which the Court has deferred to the will of Congress on four separate occasions, the last in 1999 and the Monterey County case. For the Court to now conclude that any existing problems no longer demand a congressional response of this magnitude would be for the Court to disagree with Congress on a question that, until today, was a question reserved for Congress. It would be for the Court to turn its back on precedents dating back four decades. If this is not judicial activism, I don’t know what is.

Make no mistake, the Court has been here before. The year was 1980, and the case was City of Rome. The civil rights movement had long disappeared from view, and the Nixon appointees finally had the votes and appeared poised to strike down the Act. The pieces were in place. Chief Justice Burger and Justice Blackmun had reserved judgment to this point, but in earlier concurrences had made clear that they were not friends of the VRA. The facts were also gift-wrapped: How could the Court justify the congressional enforcement of a discriminatory effect standard if the Fifteenth Amendment only protected against intentional racial discrimination (as the Court concluded the same day it issued the Rome opinion, in City of Mobile)?

The line-up was set: Justices Powell, Rehnquist and Stewart, to be joined by Chief Justice Burger and Justice Blackmun (and who knew, maybe even the newest Court member, Justice Stevens might come along).

But in the end, Burger and Blackmun could not do it. They signed on to Justice Marshall’s opinion upholding the VRA and did not offer their views on the matter.

So maybe, just maybe, Justice Kennedy will not be able to do it either. And that is just bizarre, even incomprehensible – the central policy questions of our time decided by the Court on a 5-4 vote, and a swing Justice holds all the cards.

It might be time to abolish judicial review after all . . .

Lazy Stereotyping and Coverage of Sotomayor

We’ve seen the criticisms leveled at Judge Sotomayor before. In fact, they correspond strikingly with traditional American stereotypes of Latin Americans. In 1940, the Office of Public Opinion Research conducted a poll where respondents were given a card with 19 terms on it. They were asked to choose which term(s) best described Latin Americans. The results were as follows:

Dark-Skinned (80%)
Quick-tempered (49%)
Emotional (47%)
Religious (45%)
Backwards (44%)
Lazy (41%)
Ignorant (34%)
Suspicious (32%)
Friendly (30%)
Dirty (28%)
Proud (26%)
Imaginative (23%)
Shrewd (16%)
Intelligent (15%)
Honest (13%)
Brave (12%)
Generous (12%)
Progressive (11%)
Efficient (5%)
No answer (4%)
No opinion (0%)

A quick scan of major news outlets reveals that, 69 years later, commentators from across the political spectrum still trot out the same stereotypes to criticize Sotomayor.


The old stereotype that Latin Americans lack intelligence manifests itself today in questions about Judge Sotomayor’s qualifications, intelligence, and, writing ability. Despite her Bronx to Princeton to Yale Law pedigree and almost 11 years of service on the Court of Appeals, Ponnuru labeled her “Obama’s Harriet Miers.” Rove put it a bit more straightforwardly (at about :40) on Fox News: “I’m not really certain how intellectually strong she would be…she has not been very strong on the Second Circuit.” On the left, Turley posits that she doesn’t have the “intellectual throw weight to make a difference on the court.” And Liptak argues that her opinions lack some sort of rhetorical flair. They “reveal no larger vision, seldom appeal to history and consistently avoid quotable language.” Instead, they’re merely “technical, incremental and exhaustive,” as if these three adjectives combine to form a slur.

The characterization of Sotomayor as “quick-tempered” and “emotional” has been brought up time and time again, though it is generally couched as an issue of “temperament.” In the New York Times, Becker and Liptak called Sotomayor “sharp-tongued and occasionally combative,” echoing Rosen’s anonymous sources, who described her as “kind of a bully on the bench” and “domineering during oral arguments, but her questions aren’t penetrating.” Deeper within their article, however, Becker and Liptak point out that “some observers” claim her “blunt” style might actually help her stand up to Scalia. So she’s either an angry Latina or potentially “an able politician on the Supreme Court,” but an article casting her as the former makes for better headlines.

The deeper one delves into the blogosphere, the more ridiculous the arguments become. Over at the National Review Blog Corner, Krikorian offers a laughable criticism: by retaining the Spanish “So-toe-my-OR” emphasis on the last syllable of her name, Sotomayor is “insisting [up]on an unnatural pronunciation.” Apparently, this “is something we shouldn’t be giving in to,” because when choosing a proper pronunciation of your last name, Anglicized “conformity is appropriate.” Notice both the “we” versus them distinction and the implication that her “unnatural” pronunciation of her own last name is “backwards.” And finally, without a readily available Latin American stereotype, how does the most recent National Review cover (top of post) depict Sotomayor the “Wise Latina?” Easy. It slants her eyes and makes her Buddhist.

Politically, these off-base stereotypes are unlikely to gain much traction. Senate Republicans appear unwilling to launch extreme personal attacks on Sotomayor, if only because they cannot afford to lose more Hispanic votes. For example, Senators Sessions, Hatch, and Cornyn all pointedly disagreed with Gingrich’s claim that she is a “racist.” Nonetheless, it’s still troubling that these stereotypes arise in this context. On so many levels, Sotomayor is a historic nomination to the Supreme Court, yet many commentators just want to discuss whether she’s too feisty.

Tricky Ricci

I've been thinking a bit about Ricci v. DeStefano, the New Haven firefighters case currently before the Supreme Court and in the news because Supreme Court nominee Sonia Sotomayor was on the Second Circuit appellate panel that affirmed the lower court's decision. Conservatives have used Ricci as the poster child for the argument that affirmative action has gone too far and is outmoded, especially with a black president. They have also used it to try to undermine the nomination of Judge Sotomayor. With some exceptions, left of center commentators have not had much to say about the case, the facts of which appear hard to defend. But upon closer inspection, progressives should have more to say about Ricci than they've said so far.

First a quick recap of the facts for the uninitiated. If you wanted to be promoted to captain or lieutenant in the City of New Haven you had a take a written and oral test (the written test counted more than the oral test). The pass rate for the white test takers was double that of the colored test takers and the top scorers were almost all white. The City refused to certify the test, which meant that no one got promoted. Seventeen white firefighters and one Latino claiming racial discrimination. The City defended on the grounds that certifying the tests would subject them to a lawsuit from and liability to firefighters of color.

Ricci is interesting for a number of reasons. First, the case has a very compelling plaintiff, Frank Ricci. Ricci is dyslexic. He took time off from work, paid someone to read to him, and did extremely well on the exam. Straight out of central casting.

Second, the case seems grossly unfair. After Ricci and his fellow plaintiffs studied for the test and did well, the City looked at the racial composition of those who passed the test and then decided that it would scrap the test and not certify it. As Professor Fuentes-Rohwer would say, Uuugly!

Third, neither the district court nor the Court of Appeals gave this case the full treatment that it deserves given the very difficult legal issues that it presents. The Court of Appeals dismissed the case in favor of the City on summary judgment. (For the non-lawyer readers, this means that court believed that there were no issues for a jury because the law entitled the City to prevail on the facts.). The Court of Appeals panel first affirmed the judgment of the district court in a summary opinion. The full Court of Appeals then voted on whether to hear the case en banc (all the active judges on the court would participate as opposed to simply a panel of three). The petition for en banc review was denied (the appellate panel's decision would stand) and prompted a sharp dissent by Judge Jose Cabranes.

Fourth, there is the whole Sotomayor connection and not much more needs to be said about that.
As a point of departure, I'm in rough agreement with parts of Judge Jose Cabranes' opinion dissenting from denial of en banc review. Judge Cabranes raises two points that I find pretty compelling. First, it is not clear to me that the lower court was correct in dismissing this case on summary judgment. There seems to exist a question of fact as to why the City refused to certify the tests, which should have precluded a grant of summary judgment. Second, I also think that Judge Cabranes is correct that the Court of Appeals should have scrutinized the decision below more closely and offered its own independent analysis of the legal issues. By failing to give the case the full hearing it deserves, it looks as if both courts are trying to bury the case. Judge Cabranes' opinion was like a red flag for the Supreme Court inviting it to take the case, which it eagerly accepted.

I have no expectation that the Supreme Court will affirm the Second Circuit in Ricci. I fully expect another 5-4 opinion with Justice Kennedy playing Hamlet but reversing the court below. Nevertheless, I am not convinced that Ricci is ultimately the affirmative action slayer that conservatives make it out to be. As sympathetic as Frank Ricci may be as plaintiff, and I fully grant that he is a sympathetic plaintiff, it does not seem to me that one can sympathize with him without also being sympathetic to the African-American and Latino firefighters whose promotion prospects are more theoretical than actual.

While expressing sympathy for Ricci, denied an opportunity that he felt that he justly deserved, progressives should prompt a conversation about the causes, extent, and fairness of racial inequality. How can we be sympathetic to Frank Ricci who fought difficult circumstances to achieve his goal but we cannot be sympathetic for the black and brown kids who have to attend second-class schools, have extremely difficult home lives, and are more likely to die in a homicide than any other demographic group? Did the Frank Riccis in the New Haven fire department do better on that test because they worked harder, were smarter than their colored counterparts or are there structural disadvantages that account for significant disparate impact that we saw in those promotion tests? Should the City of New Haven use a test for promotion that would disqualify almost all of the Latino and African-American test takers? Is that our vision of a just society?

Bias in Political Analysis

Ben Smith over at Politico is reporting that Richard Wolffe, the former Newsweek reporter, was given special access by the Obama campaign so that Wolffe could write a book about the campaign. Apparently, this special access was given in return for soft reporting by Wolffe. I don't mind Wolffe or any other reporter having special access to a campaign or president in return for soft coverage as long as the arrangement is disclosed. Mr. Wolffe appeared on MSNBC throughout the campaign and on the pages of Newsweek as an independent analysis but as it turned out, he was far from independent.

Smith is reporting that Wolffe is getting grief for his former pals for holding out on them by saving most (or the best?) of the materials for his book instead of publishing it in Newsweek, which apparently was financing his research. But so far no one is giving Wolffe grief for pretending to be an objective commentator when he was a party to a tacit or explicit quid pro quo--access for soft coverage. Again, I'm not objecting to the arrangement--and apparently this is not at all unusual. However, I think journalists have an obligation to disclose those arrangements so that we the readers and viewers can judge for ourselves as best as we can. When they don't disclose, we should punish them.

Silly Analysis About Race

I was struck by a few paragraphs in reading this commentary for Time magazine on the Sotomayor nomination by Christopher Caldwell of the Weekly Standard, provocatively advertised on the cover of the magazine as "The Coming Showdown over Affirmative Action." The commentary is mostly bland except for two eye-catching paragraphs. Noting Sotomayor's role in a Title VII "affirmative action case" involving New Haven firefighters, Caldwell writes:

Whether or not you like racial preferences, they involve a way of looking at the
law that is sophisticated rather than commonsensical. If the New Haven opinion is fair, it is the kind of fairness you learn at Yale Law School, not the kind you learn in the South Bronx.

It is not clear to me why "racial preferences" are sophisticated as opposed to commonsensical and requires a Yale Law education as opposed to life experiences to understand. Take some commonsensical points of departure. Suppose that you are a person of color who grew up around other people of color in the barrio or in the inner-city. There you were surrounded by people of color that you deemed to be extremely smart and very hardworking, but who were also given few breaks in life. Indeed, you might be that person yourself; you felt that you always had to work harder than your white peers but received fewer goodies than they did. How would you think about an entrance test for becoming a firefighter or an exam that determined who got promoted up the ranks in which most of the candidates of color did poorly and the white candidates did well?  Moreover, what would you do if the law told you that those types of disparate impacts were permitted only in very limited circumstances?

It seems to me that commonsense would tell you one of two things: either the candidates of color were stupid or lazy (option one) or the system was unfairly rigged against them (option two).  Of those two choices, which one would be commonsense option, if you were a person of color and you grew up in difficult circumstances? My guess is that the commonsense option is option one.

After that illuminating paragraph, Caldwell went on to assert that the rationale for affirmative action, "that minorities are cut off from fair access to positions of influence in society . . . has been undermined, to put it mildly." That's not putting it mildly, that's putting it stupidly. One can argue that intentional race discrimination is on the decline and therefore so should affirmative action. That would be fair. One could argue whether the conclusion follows from the premise but there would be something to argue about. However, the naked and without evidence proposition that citizens of color have equivalent access to positions of influence is simply wrong.

Consider of a relevant marker of differential access, the education gap. 17% of black adults over 25 and 40% of Latino adults over 25 have failed to complete high school. The comparable number for whites is 9%. Black SAT scores in critical reading lag behind that of whites on average by about 94 points. You could find similar statistics for almost all levels of educational achievement; there is a definitive sometimes narrowing, sometimes widening but persistent gap. My guess here is, and this is only a guess, if you grew up in the barrio you would understand that it is unfair that people of color do not have the same access to positions of power than whites and you might even do something about it when the law requires you to. But that might make too much common sense.