Judicial Activism and When Its Good

The activist v. restraint debate has existed in the legal and political worlds since the term judicial activism was first coined, according to Keenan Kmiec in THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM", by Arthur Schlesinger Jr. In 1947, Arthur Schlesinger wrote an article about The Supreme Court of the United States for Fortune Magazine examining the nine justices and placing them into three camps, an activist camp, restraint camp, and the middle ground. What follows is a discussion of judicial activism and when it is appropriate.

Schlesinger via Kmiec,

This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.

You can see right off the bat the problem in the outlined dichotomy. In this conception of what constitutes a non-activist court is clearly one that forgoes its responsibility as a branch of government. The courts and the Supreme Court in particular is supposed to be a a third co-equal branch of government. In the conception of activism outlined by Schlesinger the court is abdicating its role as a check on the other branches of government. When Schlesinger writes about, "the limited place in the American System" he is misstating the proper role of the court into something less than it has ever been. The Court has been a powerful and key player in American History since Marbury and for Schlesinger to view the Courts role as limited seems to be rather revisionist.

Kmiec's exploration of the origins and meaning of judicial activism illustrates an important flaw in the conception of Schlesinger's judicial activism. A lack of precision and metrics for the term.

Schlesinger's article contributes to legal scholarship and popular debate as the first significant commentary on "judicial activism." Schlesinger suggests the layers of the clash: unelected judges versus democratically enacted statutes; results-oriented judging versus principled decisionmaking; strict versus creative use of precedent; democratic supremacy versus human rights; law versus politics; and other equally fundamental dichotomies. Yet, even this initial effort exhibits some of the symptoms of the classic malady that has infected modern discussions of judicial activism. Schlesinger fails to define his terms with precision. For example, would Bush v. Gore or Roe v. Wade qualify as "judicial activism" according to Schlesinger? If so, why? Because they (arguably) exhibited a lack of deference to the political branches? Because they were (arguably) departures from precedent? Because they (arguably) qualified as judicial legislation? Or perhaps because they were (arguably) result-oriented? Schlesinger never explains what characteristic would make a decision "activist." Instead, he ascribes so many attributes to the Judicial Activists and the Champions of Self Restraint that it is impossible to determine which ones are necessary, sufficient, or superfluous. Of course, this line of questioning is unfair: "Judicial activism" had no established (or competing) definitions when Schlesinger used it. Nevertheless, to the modern eye, the ambiguity in Schlesinger's article is frustrating.

This flaw has been transmitted to almost every general public discussion of what constitutes judicial activism. This is why the phrase is often taken to be without any meaning and to be a simple stand in for a decision that one party doesnt like. I think the problem may lie in the fact that the term "activism" has a connotation other than the court simply acting. It would be easy to divide a court into instances when they act and instances when they dont and call one activist and the other restrained. This misses the point though. What i believe is the easiest and most accurate understanding of what constitutes "judicial activism" is when a court enacts a policy that runs counter to general public preference and trend of society. Is that nebulous and vague? Hard to measure? maybe. Judicial Activism is essentially when the court stands in the way of the public moving law or policy in the direction they wish it to go, contrary to the felt necessities of the time.

By this i dont mean that every time the Court invalidates a legislative action they are being activist. I think it is too narrow and naive to hold that every act of the legislature or elected officials is the true will of the people. The public doesnt know and doesnt care about most legislation. Not to mention that the public is often unhappy about the influence of special interests in the legislative process. However, sometimes that will is clear and the court will violate it. I think the Leadbetter case is a good example of activism in that the Court clearly went against the intent of congress to provide protection for women against discrimination in pay and that decision was invalidated by a new Law from Congress. It is also possible for the court to be activist when it doesnt invalidate legislation the public disfavors.

Because the activist concept relies on the reaction of the public it is inherently difficult to gage. The best way to see whether the court is running against the public might be to poll. It seems rather ridiculous to take public opinion polls about the Court but the main reason for judicial restraint is supposed to be the maintenance of the Courts credibility as an institution. What better way to see if credibility exists than to ask people? Of course people probably wouldnt even know enough to answer such a poll unless the court was making unpopular decisions. Otherwise no one would care enough to publicize it.

Kmiec details a different perspective on what activism is. He explores the disregard of precedent as a form of activism. He also looks at so called judicial legislation and the possible activist aspects of that. For this he lloks at the Warren Court and its expansion of rights,

Critics of the Warren Court have often voiced Justice Black's concerns. Even admirers of the Warren Court concede that it was activist in this sense. As Gary Schwartz put it, "In its constitutional rulings, the Warren Court was the paradigm of judicial activism." However, many of the Warren Court decisions most often labeled as judicial activism have gained acceptance. For example, Miranda v. Arizona, which created a mandatory warning that police must give to all suspects upon arrest, is generally accepted by the public and the police, a fact cited in its reaffirmation by the Supreme Court itself in United States v. Dickerson.

Cases like Miranda serve as reminders that whether a case is "activist" may not explain whether or not it is a good decision, when one's definition of "good" is based on other criteria. Individual cases can result in favorable consequences or set desirable precedents despite being improper exercises of the judicial function. Thus, one problem with using "judicial activism" as a pejorative, as critics of the Warren Court often do, is that it confuses the issues. Using "activist" as a substitute for "bad" elides important differences between the two labels; it fails to elucidate the specific ways in which a judicial opinion is improper, harmful, or wrong.

Kmiec clearly points out the problem with the contemporary understanding of activism. The Warren Court was activist in the sense that they did things. They "acted" however the decisions they made are often quite popular and important to contemporary society. The Warren Court was discovering policy supported and in line with public will and desires. At the very least the Warren Court, if it was activist under my conceptual framework was activist in the area where it is not only OK to be activist but where activism is essential-- civil rights and liberties.

Schlesinger himself had this same feeling that activism, going against society, was ok to protect rights.

After describing these opposing factions, Schlesinger takes sides. While he sympathizes with the Black-Douglas wing of the Court, he perceives a threat to democracy inherent in their position, and ultimately prefers to limit "judicial activism" to civil liberties cases.

Kmiec includes a very illustrative quote on the idea judicial activism in regards to civil liberties and rights.

Alfred L. Scanlan offered similar praise for Justice Murphy's judicial activism in civil rights issues, answering the criticism that such activism is undemocratic by replying,

We sanction the decisions of the rule of the majority when they come from the duly and democratically elected representatives of the people. When that majority will tries to undercut or impair the basic principles upon which it rests, namely, the free play of opposing views, practices, parties, etc., then the Court, as guardian of the Bill of Rights, must step in. We will not tolerate democracy to be destroyed in its own name. Justice Murphy grasped that. The label of "judicial activist" is unmistakably a compliment in this context, reflecting a belief that one ought to aggressively employ judicial review to safeguard the rights upon which democracy is predicated. Scholars sometimes referred to Justices Brandeis and Cardozo in much the same way. For example, a 1949 article observed, "Mr. Brandeis was a pragmatic judicial activist who saw in the courts a powerful instrument to be grasped by the people in ameliorating social and economic conditions."

This is why i like my definition of activism. Where is it ok to go against the will of the people? When that will is intended on rending apart the rights of their fellow citizens or people. In cases where the Court is the last vestige of protection for the oppressed should the court simply say that oppression id ok as long as it is bipartisan? no. Kmiec proposed a hypothetical where a law is passed that establishes a religion. This law may be the will of the people but it clearly violates a right in the constitution. It should not be differed to, will of the people or not.

The purpose of our legal system is to do justice. Should courts allow clear injustices to proceed because to prevent them would be activist? As long as they act with full public backing courts may act without fear of losing their legitimacy as institutions or destroying the stability and predictability of law.

My view is heavily result oriented in that the reasoning and manner are not considered as too important. This stems from my attempt to work from the contemporary public debate and not the purely academic debate. Prof. Green who i link below had this to say about results oriented views of activism

Second, the view that activism means any undesirable result is even less plausible. Yet when commentators use the term “activism” without any explanation, it may seem that judicial results drive their rhetoric. If activism were defined to mean undesirable consequences, then the term would add nothing to straightforward conversation about the policies at stake. If judges were evaluated solely on their decisions’ political desirability, then the concept of judicial activism might be irrelevant. Whatever else judicial activism means, it is tied to the practice of judging; thus, the term must be tied not just to results, but also to appropriate judicial methods.

My view does actually take this into account. The public has some idea about how judges should decide cases. They have an understanding that precedent is important and can be controlling. If the judge goes around disregarding it, even if the result is a popular one, the public will may still run against that decision because it disregards precedent. Essentially the public is not entirely about the ends justifying the means. Judicial nominalism is not likely to be supported even if the results would normally be popular or good. My view is not relative to the "goodness" or "badness" of the outcome but rather whether it runs against what the public desires, in outcome or method.

for more excellent reading on th history of judicial activism download the paper available here by CRAIG GREEN Associate Professor of Law, Temple University.

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Terrorist Soon to Be Let Loose Among Us

Of Course i am using the Harry Reid definition of let loose among us. "loose" ofcourse means that they will be locked up securely in prisons and guarded heavily with an almost zero possibility of anything "bad" happening. There are two groups of people who are about to be set loose. the first is the 4 guys that they just apprehended for allegedly conspiring to detonate a bomb outside a Jewish temple and to shoot military planes with guided missiles. The second is Ahmed Ghailani indicted for the 1998 bombings of U.S. embassies in Africa.

Hilzoy points out the obvious problem with the first group of newly arrested terror suspects,

This raises the difficult question: what should we do with these would-be terrorists while they await trial? And if they are convicted, what then? I assume that if it's too dangerous to move people at Guantanamo to the United States, it must be much too dangerous to allow these jihadists to run loose in our prisons. After all, they might provide financing for other jihadists from their supermax cells, or radicalize other prisoners, or use special Terrorist Mind Control Techniques to create a whole army of brainwashed convicts under their complete control.

I'd suggest killing them, cutting them into pieces, and shipping their parts to parts unknown immediately (trials? who can afford trials under these circumstances?), if I weren't afraid that some hitherto unknown al Qaeda trick might allow their reanimated body parts to slither around in search of one another and, eventually, reconstitute themselves as the Islamofascist Undead. Earlier, I thought we should send prisoners into space, but that was before I realized that that would allow them to join forces with the Klingons.

In fact, I can't think of a single thing to do that would not make matters worse.

We're doomed.

What is the president going to do? He should totally ship them to -tartaros- Gitmo because we cannot afford to have these terrorists loose among us. this is exactly what harry reid foresaw. Im sorry for doubting his intelligence earlier. But wait it gets scarier as another terrorist is set to be loose among us.

A top al-Qaida suspect held at Guantanamo Bay will be sent to New York for trial, an Obama administration official said Wednesday, a major step in President Barack Obama's plan to close the detention center by early next year. Ahmed Ghailani would be the first Guantanamo detainee brought to the U.S. and the first to face trial in a civilian criminal court.

An official, speaking on condition of anonymity because the person was not authorized to disclose the decision, told The Associated Press the administration has decided to bring Ghailani to trial in New York. He was indicted there for the 1998 bombings of U.S. embassies in Africa — attacks that killed 224 people, including 12 Americans. It was not immediately clear when the transfer would occur.

Ghailani, a Tanzanian, was categorized as a high-value detainee by U.S. authorities after he was captured in Pakistan in 2004 and transferred to the detention center at the U.S. naval base in Cuba two years later.

Do you see that? This guy was loose in America already! Now president Obama is getting ready to let him loose again. I now want answers, an investigation, into how many,for how long, and why, these alleged terrorists were already allowed to be loose among us at one point in time. It simply shocks the conscience. I look froward to President Obama's speech on this topic.

I also look forward to harry reid leading the charge against trying mr Ghailani in the United States because of the danger he poses. I believe that might help his sagging pole numbers as he bravely declares America is unable to secure one man for trial on its own shores without the utter collapse of our security.

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Military Commissions and Terror Trial Policy

Its official. The Obama detainee policy and legal anti-terror regime is a mess. Its a seemingly dirty mess that highlights the most disappointing area of the Obama presidency. This stuff isnt easy. Still, the Obama administration lacks a clear, cohesive, sound policy for dealing with detainees. The apparent center piece of the legal regime for dealing with accused terrorists is going to be the odious and much derided military commission system. The problems with the use of these commissions are well documented and include the ability to use hearsay as well as tortured information at trial. There is also a lingering question of whether or not, even with these advantages, the government can gain the convictions it seeks.

I believe that the Obama policy regarding these detainees at Gitmo is to get them in a trial and convicted. Clean out the legacy detainees from the Bush era using the military commissions. After this, Obama would seek to establish a new system to deal with future detainees. The Obama administration sees the commissions as the best shot at getting convictions and this is probably the case. However even in instances with great advantage the Government might not prevail. Take for example Ahmed v. Obama .

Applying a set of legal rules or theories that appear outwardly to give the government an easier time of proving that a Guantanamo Bay detainee must remain confined, a federal judge nevertheless has found that none of them can support continuing captivity for a Yemeni national in the face of serious weaknesses found in the government’s evidence, especially its reliance on information from four other detainees.

In one of the widest ranging rulings by any trial judge in the wake of the Supreme Court’s decision finding that Guantanamo detainees have a constitutional right to contest their captivity, U.S. District Judge Gladys Kessler has ordered the release of 25-year-old Alla Ali Bin Ali Ahmed of Yemen after nearly seven years of detention. The ruling, if followed by other District judges, has strong negative portents for government efforts to justify further detention in other cases.
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Kessler allowed the government to proceed on what is called “the mosaic theory” rather than requiring it to prove directly that Ahmed has been a terrorist — a much harder task. The “mosaic theory,” often used by the intelligence community to build a case, provides that single pieces of evidence that may not be strong when looked at singly can be examined together to form a convincing pattern — here, a pattern of terrorist activity.
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What is very likely the most significant parts of the ruling, with implications for other cases, is that Judge Kessler applied without qualification the legal standard of government authority to detain that the Obama Administration has laid out, allowed the government to try to prove its case on the lowest standard of proof, conceded that the government was entitled to a presumption that its evidence was authentic, and allowed the government to offer hearsay — what others said that Ahmed had said. Each of those legal principles is, as written, more favorable to the government than to detainees, but Kessler still rejected the cumulative effect as well as the individual strength of each piece of government evidence.

Now this was in federal court but it shows that even with things like hearsay evidence and every possible advantage the government can fail to make its case against people they assert are terrorists. If we make the basic assumption that the fix isnt in this presents a major problem with even the military commissions--losing.

As it happens the government has a fear of losing in court so great that they wont even risk some people in their special commissions created for the purpose. Even when they granted themselves the biggest home court advantage they could they dont have the confidence to take some of the detainees to trial. What this means is that it is more than possible that the Obama Administration is going to throw the legal principles of our country under a bus for nothing. i mean if they are going to end up going free why not stick to our principles? That at least might be a moral victory.

This fits into my larger overall point that President Obama needs to craft a forward looking system for dealing with terror suspects that holds true to our principles of law and equity. A proposal for system that purports to be such is available here. In short Obama needs to reform this area in the same way he is looking at health care, student loans etc. This is an institutional problem and it needs an institutional and systemic solution. As it currently stands the Obama administration seems to be heading backwards in terms of reform as it relies on the flawed philosophies and justification of the Bush years. Obama needs something new. Otherwise, we are stuck with a system little changed from Bush where the only difference is that instead of holding detainees indefinitely at Gitmo we hold them indefinitely in Fort Leavenworth or Pelican Bay.

The scary truth for the Obama administration is that some of these people simply cannot face any sort of trial where the outcome is unfixed do to royal screw ups with evidence and torture.

Vandeveld said in a phone interview that the "complete lack of organization" has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, "it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name."

Vandeveld was assigned to the military prosecutor's office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the "state of disarray" as he began to gather material for Jawad's case file.

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors.

"I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.

Obama cannot face the possibility of allowing people to go free. The administration views this outcome as being either too politically damaging or practically dangerous to allow. So we are left with a bunch of detainees in limbo and a search for some way to keep them in custody without trial.

My own view of how this shakes out is that the Obama admin does put all the legacy detainees tainted by torture and other such issues through a military commission show trial that is even more watered down than we currently see. After getting these convictions A new system comes into place that corrects the criticisms that are constantly leveled at the commissions. The left and civil libertarians view the entire episode as shameful and a low point on par with Korematsu. Obama blames Bush for the need to do this. As it is only the left that is really upset about this stuff Obama is not hurt politically by it and is reelected on the strength of his other domestic accomplishments. America tries to move on and pretend it didnt happen.

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Greatest Footnote Ever

Every law student knows that the best information about cases is in the footnotes. These notes are a source of gold for students. This note though is possible the best ever.

"Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote," wrote a miffed Clark. Lawyers practicing before the 58-year-old jurist, who presides over cases in San Antonio..."

The note is actually a quote from an adam sandler movie. It quotes this scene...

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For Steele: A Brief Understanding of Law

I think it might be a waste of my time to respond to chairman Steele's ridiculous assertions regarding the linkage of empathy and law. I feel like Steele's comments deserve the Billy Madison response. Despite this inclination i want to address Steele and help him understand why his comments are so divorced from reality and an understanding of how the law works.

Other than "possession is 9 tenths of the law" this is probably the most quoted passage having to due with the law,

"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

Now compare this quote from Holmes to the words of Chairman Steele,

STEELE: Good morning y’all, we’re back in the house. We’re talking a little bit of Constitution and a little bit Supreme Court. And a whole lot of saving America’s judicial system and saving our rights as citizens and not having empathetic judges decide cases, but rather judges who are actually understanding the rule of law and what the Constitution and those laws are all about. And how to apply the facts to the law and the law to the facts. And adjudicate my case. I don’t need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.

First tip for Steele is to stop trying to talk like he is beyond the cutting edge. It doesnt work and it makes it hard to take him seriously. His major point though seems to be that in a slam dunk case where he should win the life experience or situation of the other guy will steal his win. That is absolutely not how it works and is the absolute wrong conception of what barack obama means by empathy. A better look at what Obama means by empathy is Lily Leadbetter,

For nearly 20 years, from 1979 until she retired in 1998, she worked as a supervisor at Goodyear's tire plant in Gadsden, Ala. She was an area manager, one of the few women in such a position. At first, her pay was in line with what the men in the same job made. Then it slipped. By the end of 1997, she made $3,727 a month. The lowest paid man doing that same work made $4,286 a month, and the highest paid men were getting $5,236. So she sued.

"I just could not believe that they would separate the female pay so far down the line from my male peers," she told NBC News at the time. "I was shocked when my attorneys accumulated all the information, and I saw how low it was."

Her legal argument was this: Every time the company wrote her a check, it was committing sex discrimination. But she lost. The Supreme Court, by a 5-4 vote, said she waited too long to sue. The majority said federal law requires workers to file their complaints within 180 days of an act of discrimination. In other words, the court said, that clock starts ticking when an employer decides how much to pay, not each time a paycheck is written, years later.

In her dissent, Justice Ginsburg said employers often keep salaries secret, meaning it can take years for workers to realize that discrimination was keeping their pay lower. She accused her male colleagues on the court of failing to understand how pay discrimination works. It's not like being denied a promotion, she wrote, when you know right away what happened. And, at first, women may not want to make waves if they think their pay is low, she said.

Empathy from the bench is understanding that a technical issue like the one in the leadbettter should not overcome the injustice done to her by the discrimination. The first rule of the federal rules of civil procedure is that the rules should be interpreted to secure just, speedy, and inexpensive resolutions. It is impossible to evaluate the justness of a situation if you cannot understand or automatically discount the policy arguments being made. The decisions from the Court and from appeals benches have real world impacts.

When a judge talks about "making policy" what they mean is that the result of a decision at the high levels of the justice system defines the law and how it will apply in similar situations in the future. They do this though only in murky situations without clear answersThey cannot simply issue the law by fiat.

First, let's tackle the easy issue: Do judges make laws, or, acting solely on personal will, do they create broad rules for everyone to follow? No. Federal courts only hear cases or controversies involving disputes over federal law (with very few exceptions). Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply announce policy.
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When judges decide cases, the issues are usually straightforward. But there are many cases where the law is either unclear or where the relevant constitutional provision, statute or common law principle leaves a fair amount of discretion for courts to pick among reasonable choices. In those instances, particularly in the context of constitutional law, courts arguably "make policy" as they attempt to define the boundaries of legal constraints and obligations. Conservative and liberal rulings follow this principle.

The incorporation of empathy into deciding murky cases with far reaching implications is hardly crazy. It is essential to accomplishing what steele says he wants, equal protection under the law. In fact, if courts act in ways that run contrary to the will or feelings of the general public, there is a way to fix this. This marvel that constrains the ability of the court to make policy is called the legislature. thats right, in most cases congress can edit or rewrite the law to preclude the reading that the judiciary attaches to it. This is exactly what congress did when they passed the Lilly Leadbetter act as the first piece of legislation this term. If you have any doubt about the need for empathy in the judiciary see this post by hilzoy,

Here's some evidence from Jeffrey Toobin's The Nine, pp. 218-219 (note that Justice Powell was the swing vote in this case, and came down in favor of upholding Georgia's sodomy statute):

"One Saturday in the spring of 1986, Justice Lewis Powell struck up a conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10%. Chinnis said that sounded right to him. "I don't believe I've ever met a homosexual", Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, "Why don't homosexuals have sex with women?" "Justice Powell," he replied, "a gay man cannot have an erection to perform intercourse with a woman." The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell's previous law clerks.)"

You have to feel for the poor clerk: there he is, a closeted gay man, being quizzed by his boss about why homosexuals don't have sex with women. (Apparently, Justice Powell wasn't thinking of lesbians at all.) I think that a good working definition of empathy would be: that quality that allows a straight man or woman to know the answer to that question without having to ask his or her law clerks. And I would think that the fact that Justice Powell had to ask that question might explain why he believed, falsely, that he had never met a homosexual: if you were gay, would you tell him?

Justice Powell was, as I said, the swing vote in a case that upheld criminalizing consensual gay sex carried out in the privacy of one's own home. It seems pretty clear that he had no conception of what it was like to be gay, and was therefore in no position to decide on the importance of the rights that he was deciding on. That is not a good way to interpret the law when, as in this case, the importance of a right is central to the question whether or not it is protected.

Empathy is simply understanding how things actually are in the real world. Whether this comes in the form of understanding that gay people are not straight or that women actually face discrimination in pay and that sometimes its not easy to spot or that diversity for its own sake has merit and so considering race may not be bad in all possible instances empathy is far from a bad characteristic in a jurist, it is essential. The law is not black and white michael steele. Please stop acting like it is and contributing to a misinformed discussion of the subject.

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Finals Time

So its Finals again. this means rather light blogging as i concentrate on studying.

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A Liberal on the Court

Is it too much to ask that President Obama place and actual liberal on the SCOTUS? Since the end of the Warren Court the court has been shifting rightwards slowly but surely eroding protections established under Warren. The current Court has a strong rightward lean with Scalia, Thomas, Alito, Roberts and often Kennedy join for the majority, as they did in DC v Heller. In light of this the replacement for Souter is not going to be able to swing the court to the left by a significant margin. However, the value of ability to write dissents and to stand solidly in opposition to Alito et al cannot be understated. In light of this i would encourage President Obama to stand firm against the bipartisanship crowd and nominate a solid and dependable liberal to the SCOTUS.

Here is the quote from the transcript of Obama's response to how he views the selection of supreme court justices during the primaries.

Now with respect to the bench, I think you are exactly right, we have to have people with the intellectual qualifications and academic credentials to perform. But, that can’t be the only criteria. We have generally, lately, drawn only from the academic areas. And, some of our best justices have been people who know a little bit about how the world works; know what it looks like outside of a court. Because part of...especially when you get to the highest levels, the Supreme Court, and I taught constitutional law for ten years. 95% of the cases that come before the Supreme Court or the appellate courts are actually pretty easy to resolve. A lot of these cases are cases that where there’s a clear statutory, you know, there’s clear language that tells you what the law is, or there’s clear precedent that tells you what the law is, and Scalia and Ginsburg will agree on the interpretation. And, those cases usually get washed out. The cases that we pay attention to, that we care about are the 5% of the cases, or the 1% of the cases, and what makes them hard cases, is because they’re conflicting values. It’s not just that they’re, its right and wrong, its, there might be two rights or two wrongs and you’ve got to try and resolve them. And there, the question is, what’s in the persons heart and their gut, not just what’s in their head. And what I want are people on the bench, who have enough empathy enough feeling for what ordinary people are going through, that they’re not just in a bunch of abstractions up there, but they’re focused on, you know, what does this really mean. Brown vs. Board of Education is a great example, I mean, the truth is; is that the science that showed that black children going to segregated schools was bad for them, the sociology that was used was imperfect. I mean, it wasn’t really perfect science, but people on that bench, people like Earl Warren and Brennan and others, they understood you know what, what’s really happening is that this is part of a stigmatization of blacks, and so you cant pretend that there is anything like separate and equal, its inherently unequal, that’s a statement of values, and a statement of morality, and a statement of who we are and what we believe in.And, I want my judges to understand that part of the role of the court is to look out for the people who don’t have political power, the people who are on the outside, the people who aren’t represented, the people who don’t have a lot of money, who don’t have connections, that’s the role of the court. And yes, I want women on the court absolutely.

The allusion to brown is an important one. If Obama truly identifies with the way that the Warren Court decided Brown it presents an important insight into the way he understands the role of the judiciary. This response indicates a view that the court is an instrument of social justice with ability to reshape policy to protect the interests of the traditionally disadvantaged groups in society. Obama is advocating for a judicial awareness that the decisions made by the SCOTUS really impact the lives of people. By referencing Brown and the ability to pierce the evidence and facts presented in the case Obama seems to support a legal realist point of view.

Obama's discussion of empathy and understanding is actually encouraging because it takes us away from an understanding and framing that the right has successfully propagated for years, the "activist judges" meme. Activist judge is simply rightwing code for liberal. A judge who asserts the rights of the oppressed based on the principles illustrated in the constitution applied to the real world is an activist. A judge who ignores the real world effects, the practicalities, of the decisions and the concept of justice is one who "adheres to the constitution". Liberals lose the framing battle on the courts because they are afraid to stand up for their ability to interpret the constitution. They essentially cede the argument that scalian textualism is the true form of interpretation.

This is why i find it somewhat disheartening to see reports like this, Obama May Seek Out Centrist to Replace Souter on Supreme Court

Senators from both parties said the Democratic president should avoid filling the vacancy with an “ideologue.”

“I don’t like to see an ideologue of either the right or the left,” Senator Patrick Leahy, a Vermont Democrat and chairman of the Judiciary Committee, said on CNN’s “State of the Union” today. “I don’t think we’re going to have one.”

Obama “probably understands he is going to have more than one appointment,” said John O. McGinnis, a conservative legal scholar at Chicago’s Northwestern Law School who served in the Republican administrations of Ronald Reagan and George H.W. Bush. “It may well be he doesn’t want to make a very divisive appointment immediately given that he is pursuing so many other matters.”
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Choosing a relative moderate would square with Obama’s campaign promise not to seek Supreme Court “activism,” while leaving open the possibility of a bolder nomination for a future vacancy. It would also help ensure an easy Senate confirmation, burnishing Obama’s centrist credentials while he seeks support for a health-care overhaul and other priorities.

Republican Senator Richard Shelby of Alabama said on CNN today it would be “good for the country” if Obama appoints “a pragmatist, someone who is not an ideologue.”

“I think the criteria should be to follow the law, not to make the law,” said Shelby.

Do i need to say how foolish listening to Orin Hatch and Richard Shelby about SCOTUS appointments would be? The other ridiculous notion in this quote is the idea that Obama should pick a middle of the road person this time and save the possible liberal for later. Cause, like, you know he has so much on his plate and he will need the political oxygen and plenty of other Steak Sauce esque prattle. The GOP is going to try and block whoever it is that Obama nominates. They havent voted for anything he has proposed so far so why start now? Who really believes the GOP wouldnt take a watered down nomination and try and block it anyway? They have a anti-roe litmus test and i cant imagine Obama nominating someone who would want to repeal that precedent. What this article is all about is pushing against an actual liberal on the court.

As encouraging as Obama's initial statement about empathy and an understanding about the real world effects of judicial opinions his follow up in an interview last year was disappointing,

In a 2008 interview with the Detroit Free Press, Obama identified Marshall and other liberal icons of the court as "heroes of mine." But he added: "That doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

At other times, Obama suggested that he was inclined to name moderates in the mold of President Clinton's choices of Ruth Bader Ginsburg and Stephen G. Breyer -- not known as bold advocates of liberal jurisprudence in the way Scalia is viewed on conservatism.

The Court needs a champion of the rights established by the Warren Court. The center of the current court is very far to the right. If Obama nominated someone to be in that center that would only increase the erosion of rights that Obama asserts admiration for. It is interesting that most people laud the rights enshrined by the Warren Court but wont approve of the way they were arrived at. If your philosophy couldnt have decided Brown v Board against the segregationists thats a problem. The Court makes policy and there is no way around that, pretending that a moderate centrist is going to deliver on the policy Obama claims to favor isnt wise.

A young brilliant counter to Scalia and Alito is whats needed, someone who can articulate a liberal judicial philosophy. Lani Guinier explains,

Depending upon the choice President Obama makes — Justice Souter’s legacy could be the opening up of the court to a pragmatic politician who understands Justice Brennan’s “rule of five” for a majority opinion. However, President Obama’s nominee might be even more influential if she understands her power as a dissenter and uses her voice on the court to mobilize the people themselves to change the meaning of the Constitution over time.

We’ve seen this on the right, where Justice Scalia plays an active role in creating the philosophical ground upon which citizens can advance alternative interpretations of the constitution of their own.

In his dissent, for example, in Lawrence v. Texas , which found the Texas sodomy statute unconstitutional, Justice Scalia was in conversation with a conservative constituency.

Within a few days of having published his dissent in that case, conservative activists were circulating copies of it. We have also seen it on the left, with Justice Ruth Bader Ginsburg issuing several forceful oral dissents on gender issues, including one in the pay equity case of Lilly Ledbetter.

Justice Souter joined Justice Ginsburg in dissenting from the majority opinion, which threw out Ms. Ledbetter’s suit because she did not file it as soon as she received her first shortchanged paycheck. Yet Ms. Ledbetter, an Alabama grandmother, did not learn of the pay disparity she suffered until someone put an anonymous note in her box. Moreover, as Justice Ginsburg explained, women in an all-male work force are often scared to make waves.

Justice Ginsburg’s forceful and passionate dissent helped frame the issue. Her plain language spurred activists, politicians and the Obama campaign to push Congress to change the law. As a result of this mobilization, the first major piece of legislation signed by President Obama, the Lilly Ledbetter Equal Pay Act, overruled the court majority’s cramped decision.

With conservatives strongly positioned in the majority on the court, President Obama’s nominee will likely have to show her judicial philosophy primarily in dissent. President Obama should appoint a jurist who, like Justices Ginsburg and Scalia, speaks directly to the American people in a voice they can understand.

Obama cannot afford to play it safe on his first pick because there is no guarantee that he gets to make another pick even if Stevens is 89 years old.

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Female Judges Evaluate Law Differently

With the retirement of Souter from the SCOTUS the search for the replacement is on. I have proposed in the past that the replacement should be a female minority in order to get a more diverse life experience onto the court. A life experience that is representative of a great swath of the country. The idea that the next justice be female is typically met with scorn and hostility based on the premise that "we should simply get the most qualified person" or the "smartest" or the "best" or by claims that it shouldn't or doesnt matter whether a woman is evaluating the law. I want to address that topic and assert that it does matter and that there is evidence to support a material distinction between female and male justices.

There is a difference between female and male justices as distinct classes. In a groundbreaking, and award winning, paper (pdf) "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein use a statistical analysis of decisions in various categories of cases to arrive at the conclusion that,

The likelihood of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, we find that men are significantly more likely to rule in favor of the rights litigant when a woman serves on the panel. Both effects are so persistent and consistent that they may come as a surprise even to those scholars who have long posited the existence of gendered judging.

i dont want to say that this is the only study on the subject or that every study comes out the same. The Boyd et al paper makes that clear in a brief survey of the prior research in the field,

On the other hand, the resulting research findings are so mixed that they practically defy characterization. By our count, social scientists and legal academics have produced nearly 30 systematic,multivariate analysis of the extent to which female judges make decisions distinct from their male colleagues (individual effects) or cause male judges to behave differently than they otherwise would(panel effects). Of those, roughly one-third purport to demonstrate clear panel or individual effects, a third report mixed results, and the final third found no sex-based differences whatsoever.

Because some of the existing studies examine areas of the law for which even Justice Wilson and others in her theoretical camp would have difficulty sustaining claims of gender difference(e.g., disputes involving the Internal Revenue Service), uneven results are not surprising. But even those investigations focusing on areas where a link between sex and judging seems quite plausible (e.g., sex discrimination) are notable for their incongruous findings. Three recent examples serve to make the point. In her analysis of statutory sex discrimination disputes in the U.S. circuits between 1999-2001, Peresie (2005) reports non-trivial sex eects at both the individual and panel level: female judges were more likely to nd for the plaintiff, as were panels that included a female. Westergren's (2004) examination of a similar set of cases, however, reveals neither individual nor panel effects based on gender. Crowe's (1999) study of the same courts splits the difference. Like Peresie, she finds that female judges were more favorable toward plaintiffs in sex-discrimination suits; and like Westergren, she unearths no evidence that the presence of a female judge affected the decision making of males on the panel.

After reading the Boyd paper i find their argument about the methodological short comings of regression analysis in these situations compelling enough that i favor their propensity score matching methodology.

They deal primarily in sex discrimination cases. This is an important point because it is where a common sense observer would say the biggest difference would be if females are deciding cases differently than men. The difference in probability that a woman alleging sex discrimination will receive the vote of a female justice instead of a male justice is twice as great at the highest degree of liberalism.

Observe that the estimated probability of a female judge casting a pro-plaintiff is close to 0.40 at the highest levels of liberalism;for even the most left-of-center male, that figure just barely exceeds 0.20.

This is the individual effect finding. This finding is signifigant because it shows how even the most liberal, enlightened of men is less likely to reach the same conclusion as a liberal woman. Part of the argument against using female as a selection criteria for the next vacancy has been that a man is just as capable of evaluating the case as a woman. That may still be true, however, the two genders appear to reach different conclusions in these types of cases. The panel effect, the effect of having a woman on a panel versus an all male panel is also striking.

If our descriptive analysis of the differences between male and female judges heartens proponents of gender-difference theories, our assessment of panel effects brings even more encouraging news. As we show in Figure 6, for not one model does the 95% confidence interval come near the zero line(indicating no difference between all-male and mixed-sex panels). Rather, we observe large causal effects, ranging from 0.12 to 0.16 meaning that the likelihood of a male judge ruling in favor of the plaintiff increases by 12% to 16% when a female sits on the panel.

On its face, this causal effect of panel composition is quite substantial, perhaps surprisingly so. Think about it this way. Because panels with female judges are significantly more plaintiff friendly than all-male panels, defendants should be more likely to settle after they observe assignment to a mixed-sex panel. To the extent that this form of selection bias exists, it ought mitigate against a finding of a strong causal panel effect. As a result, our findings, however substantial, may actually underestimate the impact of panel composition on outcomes.

According to the Boyd analysis in cases where discrimination is alleged having a woman on the panel makes it much more likely that the allegations will be sustained. This is a causal relationship meaning that the change in ruling comes from the change in gender. Without a woman on the panel the plaintiff would have lost in more than 1 in 10 instances.

In many ways the findings of the study affirm the previous theories about the way women will treat cases of gender discrimination and possibly discrimination in general. Justice Jane Matthews of the Federal Court of Australia had this to say (Doc) in response to earlier findings in the same vein,

To me this makes a great deal of sense. We are, all of us, the product of our life experiences. It is now openly acknowledged that judges, particularly appellate judges, are in the daily process of making the law. In doing so, they clearly impose their own values which are in turn molded by their life experiences. In general, women’s life experiences are very different from that of men. As a result, they are probably more sensitive to gender issues, and perhaps also to other aspects of the human condition.

The proposition that women do find differently from their male counterparts in gender related cases is borne out by a number of United States studies, which have shown no difference between the outcomes of cases of cases heard by men and women in economic rights or criminal cases, but a significant difference in discrimination case, with women being more sensitive to the discrimination issues involved. Whether this necessarily leads to better decision making might be a matter of debate. But I do not think that anyone would dispute that he public perception of the judiciary would be enhanced if it were seen to be more representative of the community at large.

If you are willing to accept that there is a difference between the way men and women adjudicate cases, if only in cases with alleged discrimination, the next question is whether or not we want this difference to be affirmed as good. It is possible that the women who tend to rule in favor of plaintiffs in discrimination cases go too far. for example we might assume that the 40% likelihood figure for the most liberal women finding in favor of a plaintiff is too high and constitutes discrimination in favor of the plaintiff. At the same time it is also possible that the 20% figure for the male justice it too low. This would still indicate that a woman is an important component in adjudicating these decisions.

Of course not all women are the same and not every woman is going to have such a high individual factor. However, if the mere presence of a woman is such an important factor in these cases then it might indicate that having women on the supreme court makes a very big difference in the out come of cases involving discrimination. Again whether that outcome is desirable is up for debate.

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