The Politization of the Federal Judiciary

I often wonder what constitutional law professors tell their students about the big cases.  These are the canonical cases every law student discusses at one time or another during her law school years, cases such as Youngstown Steel and Brown v. Board of Education, Marbury v. Madison and Dred Scott, South Carolina v. Katzenbach and McCulloch v. Maryland. I suspect that most professors keep it simple.  They talk about the Constitution and surely they talk about "law" as an abstract proposition.  They also bring up prior cases and spend much time "distinguising" them or "reconciling" them, or else arguing why the present case follows seamlessly from prior, settled law.

I understand why they do this.  They are law school professors, and this is a place where law must matter.  if not law, then what?

But here is the problem.  Constitutional law is not about "law" in the formal sense.  That is, constitutional law is not about the formal meaning of the privileges and immunities clause or the necessary and proper clause.  To be sure, this is what law professors would have you believe.  I am here to tell you that they are either lying to you (and themselves) or else they are so imbued in the law school orthodoxy that they can't tell any better.  And that's too bad.

Empathy, Racism and Our Highest Court

The Sotomayor nomination has taught me two things. The first is that the American public might in fact be dumb and dumber. The second is that Chief Justice Roberts might well be a racist.


The first insight came to me soon after the nomination became public, and the "wise latina" comment gained currency. Her comment was this: she "hope[d] that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." If I understand her correctly, these words must mean that judicial experiences affect the way one understands legal issues and arrives at legal conclusions.

If I am right about that, then I wonder: is that it? To say that the depth of one's experiences enrich one's approach to judging should not be controversial. This is true for any judge, whether Thurgood Marshall or Clarence Thomas, Sandra Day O'Connor or Earl Warren.

Does anybody seriously dispute that?

Yet a who's who of conservative punditry assailed her as a racist.

Is anybody out there stupid enough to believe that she is?

The second insight flows directly from the first. Recall here President Obama's stated intentions to appoint judges with "empathy" for the downtrodden. To the aforementioned critics, this is code for appointing activist judges.

To this charge, you can either laugh or cry.

This is actually an easy one. Consider poor, downtrodden Frank Ricci, the firefighter who studied for hours on end, spent a good chunk of money, aced his test, yet was denied a promotion after the city of New Haven threw out the test because of its racial impact.

The Supreme Court sided with Mr. Ricci, in a 5-4 decision delivered by Justice Kennedy and signed by the four remaining conservative justices.

To understand Ricci, it might help to read President Obama's words. Here is what he said:

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

On this argument, it appears that we also need somebody who's got the empathy to recognize what it is like to be a white firefighter in a world where the rules are stacked against you. Or something like that.

In fact, to read the Court's race jurisprudence post-City of Richmond v. Croson is to see a Court empathetic to the travails of white people, innocent victims trampled at the hands of a racist elite. It is hard to read it any other way.

I get it: it is empathy when applied to rulings we disagree with, but strict constructionism and "fidelity to law" when we agree.

Is anyone stupid enough to believe that?

This brings me to the Chief Justice and his record while on the Court. "In every major case since he became the nation’s seventeenth Chief Justice," wrote Jeffrey Toobin, "Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
To this list, we can add that Roberts has also demonstrated deep antipathy towards the interest of persons of color, on issues as far ranging as voluntary racial integration plans, voting rights, or hiring and promotion.

Which leads me to no other conclusion: if Judge Sotomayor is a racist for believing in the value of judicial diversity, what does his track record make Chief Justice Roberts?

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.