Friday, August 18, 2006

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?


I think we have to distinguish between legal realism as a normative concept, and as a description of the views of particular lawyers. Legal realism is the death of "law" as a thing that anybody would respect out of anything but prudential concerns, but it certainly is an accurate description of how many lawyers approach the field.

The effort to establish that legal realism is all there is or could be, is a kind of tacit admission that this view of law is so poorly recieved by the general public, that the only way they can be gotten to accept it is to convince them there isn't any alternative to it. That it's either legal realism, or no law at all.

Isn't the issue here not with "legal realism" per se, but with the relevance of the background information supplied?

As I see it, legal realism could mean two approaches:

1. Judicial decisions can be understood by taking into account the entirety of a judge's background;

2. Judicial decisions can be understood by taking into account relevant factors in a judge's background.

As a practical matter, newspapers can only follow path 2. The real question, then, becomes "how are Judge Taylor's ethnicity and gender relevant to this particular ruling?". It's pretty hard to see how, even if they might plausibly be relevant in other cases. Even harder when newspapers rarely (ever?) describe a judge as "white".

Approaching a half-century as a member of the press (most recently as a member of the blogging press), I would suggest that most of the nation's leading news outlets have for years been wrong -- from the perspective of journalism -- on the subject of identifying the president, the president's party affiliation, and, if known, the party affiliation of the federal judge when a newsworthy opinion emerges. Whether or not this can be defended on grounds of "legal realism," the problem with it is the news media's editorial motivation in providing this kind of identification. In the news business, one must always be sensitive to the conclusions that a story seems to be inviting the reader to draw, even if those conclusions are not stated bluntly or obviously. This pattern of partisan identification of judges invites the reader -- and this is well known in newsrooms -- to conclude that the judge is probably incapable of detachment from partisan instincts or habits, and thus will predictably toe the party (or the White House) line. In this perception, there is no reason ever to suspect a judge of being good at the craft of judging; however many years may have passed since the judge's pre-bench career, and however distinguished that judicial career may have been, the reader is invited to look to a solitary determinant of judicial behavior -- the irresistible urge to see that my party's agenda (or my president's) is achieved judicially. This perception has contributed to the poisoning of the judicial nomination and confirmation process. and nurtured the lunacy among senators of talking about "Republican judges" and "Democratic judges." (I have debated this issue for years with other journalists, and I have been consistently on the side of opposing such identifications.)
In passing, I might suggest that too much of the commentary about Bush v. Gore over the years has focused upon the majority being a group of "Republican Justices" -- as if that were enough of an explanation. That is, simply put, a canard. Had any of those who loosely make such a claim been intimate with the proceedings in Bush v. Gore, closely understood the internal perception (at the Court) of a genuine constitutional crisis (whether or not that was exaggerated), realized the enormous difficulty in analyzing legal and constitutional issues in the midst of a media circus (with the courthouse ringed by TV satellite trucks and klieg lights as if the Court were hosting a political convention or a military skirmish, and knew the Justices well enough to perceive the difference between sincerity and chicanery, the outcome is explainable by far more respectable reasons than a shameless wish for a George W. Bush Presidency.
It is one thing, perhaps, for a serious scholar to use partisan identification in analyzing the outcome in Bush v. Gore, perhaps as part of a broader inquiry into judicial motivation; it is quite another thing for a newspaper, magazine or broadcast outlet (or a blogger) to tell a lay audience that has only a few minutes to digest a news item that a court decision in a complex case with much, legally and constitutionally, at stake that the outcome is best explained by partisan affiliation or affection.
In my own post of Judge Taylor's decision, I referred to her 27 years on the bench. I was inviting my readers to conclude that that was relevant, and I believe it was. I also told my readers that the judge had acted one day after the Justice Department had informed her of the Judicial Panel's consolidation order and that this case would be a "tag along." I was inviting my readers to conclude that that, too, might be relevant. I did not insult the intelligence of my readers by implying to them that this decision emerged because this is what Jimmy Carter, the Democratic party, or the civil rights movement would have wanted this judge to do.

The standard argument for integration, racial or gender-based is that one group can not be assumed to 'speak for' another: men for women or white for black.
As I've pointed out a few times, the debate of Israel in this country is still the debate of Jews and their supporters concerning Arabs. [Here's another good essay from London Review of Books]

So why does the NY Times publish and article with the headline: Experts Fault Reasoning in Surveillance Decision? The answer is that we debate within the parameters of our own prejudices and assumptions. Here's another example from Volokh. What legal realism pretends is that it is possible to assess those prejudices without succumbing to them- to have distance from ourselves- and simultaneously to use our objective knowledge to obtain our purely subjective goals (and satisfy our purely subjective desires).

This is intellectual vulgarity of the lowest order, undermined by the debate as described in the Times this morning. Judge Taylor's decision in this case is surely political, but not entirely so, and on appeal the case will be argued from scratch. Any defense of Bush v Gore as unpolitical is absurd as the justices have admitted. But more importantly, the definition of what is and is not beyond the pale in public discussion is based not on logic but on logic and circumstance: on politics. To refer to Professor Balkin's terminology, "High politics" is the politics of polite disagreement within accepted norms, within the debates among the fully enfranchised. For groups left out of the conversation, such polite discussion with the enfranchised is impossible. High politics is the art of conversation among equals: and equality is necessary for it to take place.
The vulgarians of legal realism, on the let or right- Posner of Leiter- think art is superfluous. This is both anti-intellectual and just silly.

I shut down an absurd debate about the roots of secularization once with the simple comment that secularization is the simple result of coexistence, Once a Catholic girl fucks a Jewish boy, it's the beginning of the end for religion qua religion.
To put it in terms of law: modern democratic justice is a Muslim judge hearing the case of a Christian accused by a Buddhist of robbery, defended by a Jew, with the state represented by a Hindu, before a jury of Animists and Jains. In order to function in such an environment you need to engage it in its entirely; you must answer not to one interest or another but to all. That's how social activity/social life functions. A court of law is a church, a theater and a cocktail party all rolled into one. Realists imagine themselves as bookist wallflowers. But bookish wallflowers, though they are the last to admit it, are 'types' no less than the rest of us. Their lack of self-awareness is the root of their weakness as philosophers.

It seems pretty-simple: everyone has agendas, no-shit. When a judge is appointed, they come to the job with all of their environmental-experiences, and biases, as well as legal-experience (or lack-of). Of-course, we on-the-Left will point-out the background of a Supreme Court Justice when they issue their predictable decisions such as the 2000 elections. But it was obvious that there were genuine conflicts-of-interest in that decision, too. The right cannot find this, though I think they are implying that there is some similar-situation. Clearly, there is not. A truly strict-constitutionalist would have made this decision, regardless of their background.

No, the divide here is between people who really believe in our form-of-government with its checks-and-balances, and those who do not. It's an all-or-none equation with the Bill of Rights, not a salad-bar. As for the New York Times--get-real, they've always been arch-conservative, but we know this. They share a similar agenda as the Bush administration, it's all a smokescreen.

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.

They can, if the perspective is only mentioned in a certain political context. If the only time that the race and gender of judges is mentioned is when a minority-group judge makes a controversial decision which will be heavily attacked by partisans, then mentioning the judge's demographic does more harm to "perspective" than it does good, by reinforcing a link between minorities and 'bad' decisions.

What I worry the most about is when 'hard' news sources that are supposedly free of analysis (like AP) make mention of these facts -- often giving them more prominence in the article than the details of the case. The effect of putting these facts in such a prominent place is the implication that these facts were key to the ruling.

I think this implication is poisonous to the judicial profession and is probably political in nature. When one political party makes so much noise about how 'activist' judges are giving 'biased' opinions, any discussion of the personal (versus the professional) history of the judge plays into their hands.

When news sources which claim not to offer analysis to make prominent mention of the judge's personal background, I think it amounts to an implicit claim of judicial bias. Unless people are in the habit of assuming that newspaper articles include 'red herring' facts which are not relevant to the content of the article.

Love is a fire. But whether it is going to warm your hearth or burn down your house, you can never tell.
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