Legal Realism, the Court, and the Press

Sandy Levinson

Marty raises a very interesting point in his post about the fact that the Times identifies the race and appointing President (and, of course, the gender) of Judge Taylor in their article on the NSA case. I'm not clear whether the objection sounds in "due process" (newspapers ought not give information about judicial demographics at all) or "equal protection" (newspapers should give such information about all judges, including, e.g., Judge Silberman). I presume it's much too late to make a serious argument for the former.

Isn't it the case that "we're all legal realists now," at least to the extent of recognizing that the personal background and experiences of a judge, including political party identification, is often relevant to explaining the outcomes in controversial cases (e.g., those cases where "reasonable people" can legitimate disagree on the legal analysis)? I assume that many readers of this list were quick to point out that the majority in Bush v. Gore were all conservative Republicans who, with no plausible doubt, were supporting the election of George W. Bush. Moreover, in the recent Texas gerrymandering case, I think it is relevant, in analyzing Justice Kennedy's strange opinion, to note his Republican background, since he is clearly sympathetic to the argument that Texas Democrats in effect deserved some payback for their egregious 1990 gerrymander. (His opinion put the lie to his argument in Vieth that he would strike down partisan gerrymanders if only a "neutral standard" could be suppled, since, as a matter of fact, the "no mid-decade redistricting in the absence of a compelling state interest" principle (articulated in a brief filed by UT professors, of which I was one), supplied just such a principle.

One of the disgraces of the Supreme Court's opinion in Palmer v. Thompson, dealing with the shutting down by Jackson, Mississippi, of all public swimming pools upon the issuance of a judicial desegregation order, many decades ago is that it failed to note that the district judge below was Harold Cox, a thoroughly racist former law partner of Mississippi Sen. James Eastland. (This is only one example of the extent to which the courts are often "unreliable narrators" with regard to learning the most salient facts of given cases.) In a later opinion dealing with discrimination against Mexican-Americans in Texas, Justice Powell went out of his way to note that the conduct in question had been approved not only by a Mexican-American majority city council, but also by a Mexican-American district judge.

So the real complaint might be the "equal protection" one. Marty is spot on that there is no greater reason to supply the demographics for Judge Taylor than for any other judge or justice. It will be interesting to see, for example, if the Times, when covering the next vouchers-in-schools case decided by a 5-4 vote (Roberts, Alito, Kennedy, Thomas, and Scalia, with dissents by Stevens, Souter, Ginsburg, and Breyer) will point out that this is also five Catholic Republicans coalescing against two Jews and two (probable) moderate Republican secularists.

Consider, for example, Chief Justice Margaret Marshall of the Massachusetts Supreme Judicial Court. It is hard to understand her taking the lead in Goodrich, I believe, without being aware of her background as a South African extremely sensitive to the realities of apartheid, including the implications of denying gays and lesbians access to the social good of legally recognized marriage. One can agree or disagree with her decision, but if one is simply trying to explain it, I don't think it suffices simply to look at the existing legal doctrine, since, obviously, it doesn't speak in one conclusive voice. (Obviously, even in strictly explanatory terms, one would have to explain as well why three other Mass. justices were willing to agree with Judge Marshall.)

To be sure, Realist analysis needs to be done with sophistication. Many political scientists have made telling criticisms of a facile "attitudinalist" approach to judicial decisionmaking, especially when based on broad demographic generalizations (or stereotyping). One cannot understand the split, for example, between Republican libertarians (like Alex Kozinski) and social conservatives (like Scalia) by pointing merely to their both being Republicans.

A final point: One of the arguments sometimes made for "diversity" in the judiciary (or elsewhere) is that the undersupply of persons with traits X or Y denies the bench the particular "perspectives" likely to held by Xs or Ys. Anyone who takes such a position presumably would agree that it matters that Judge Taylor is an African-American woman, and it is scarcely irrelevant that she had experience in the civil rights movement, which was more than aware of the potential for abusive use of the legal system to suppress alleged enemies of the political order. (This does not mean, incidentally, that one have the stupid view that "all African-Americans think alike." Justice Thomas in fact supplies an extremely interesting perspective derived at least in part by the fact that he has thought far more than anyone else on the current Court about the needs of the African-American community--which, he believes, is to dispense, as soon as possible, with the false gift of affirmative action.) In any event, no one who supports "diversity" on "perspectival" grounds can legitimately object to notice being taken of the demographic traits that presumably help to supply the relevant pespective.

One might well believe that our legal/political culture would be even further diminished by the ever-greater acknowledgment of judicial demographics. But how does one put the Realist genie back into the bottle unless one forthrightly argues, I believe implausibly, that there is simply nothing to be learned from such information?
Posted 6:29 PM by Sandy Levinson [link]