American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making. Despite the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.

The article will appear in the William & Mary Law Review in 2010.

It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument.  Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4^th District, 2^nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”

Proponents of the practice contend that it has several distinct advantages.  According to the California court’s website, many parties simply agree to cancel oral argument after seeing the tentative opinion.  Even if oral argument proceeds, it is much more focused because counsel are well aware of how the judges are thinking about the case and which issues are most important.  Less frequently, counsel may even notice errors in the tentative opinion’s discussion of the underlying law or facts, and use the oral argument to correct them.

If the first point is true, the practice seemingly amounts to suppression of oral arguments that would otherwise occur.  I am sympathetic to but not persuaded by the accompanying claim that this outcome may save time for the courts and money for the litigants.  I still believe there is significant value in oral argument.  Some of the reasons are obvious.  In a few cases, the panel really will be on the knife’s edge of indecision because the case is so close.  In other cases, the argument allows the litigants to correct any misimpressions of the governing facts or law made by harried judges or law clerks before they are set in ink.  If an opinion, however tentative, has already been issued, it seems to me that judges will be more defensive about its perceived weak points.

Oral argument also allows the panel to “argue” to one another by asking leading questions and thus ensuring that certain points will be stressed to their colleagues.  Speaking as a former law clerk on an appellate court, I think litigants should not underestimate the importance of this point.  Advocates always ready themselves for the hard questions, but don’t do enough to run with “softball” questions that will almost inevitably come.   In the very close cases, members of the panel often are forced to become advocates for one side or the other in the judicial conference room.

Finally, I think there is an intrinsic and cathartic value in telling the appellate court why the lower court got it wrong.  In my experience, this holds true both for lawyers (directly) and the clients they represent (vicariously).  When citizens see that the nation’s highest courts allow litigants to tell their stories and correct mistakes, it can provide a much-needed boost to public confidence in the judiciary and the judicial system.

                I’m excited by this development and wish that more states, including Wisconsin, would establish similar programs.   Too many poor people with critical legal needs navigate a complicated system without legal assistance.   When parties with critical legal needs are represented, the system is fairer and more efficient.

Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.

In the controversy surrounding the chartering of the Bank of the United States, shortly after the Constitution was ratified, two of the Framers grappled with this dilemma.  The fact that they came to different conclusions continues to influence the debate over federal power today.   James Madison and Alexander Hamilton agreed that the delegated powers of the federal government should be interpreted broadly, but they differed in their view of whether the Constitution left any negative space for the federal government to expand beyond those powers expressly delegated to it.

Madison felt that the outer limits of federal government power were set by the understanding of the people at the time that the Constitution was ratified.  Those boundaries could not be expanded short of a constitutional amendment.  In contrast, Hamilton seems to have believed that these limits could be loosened or lifted through precipitous action by the federal government, explained and defended to the public, so long as the public demonstrated their approval of the new boundaries.  Hamilton’s conception of sovereignty allowed for the possibility that later generations of Americans might approve of a stronger national government than was originally envisioned, if they were persuaded that the extra authority was merited.

 Hamilton’s proposal to charter a national bank, and his adoption of the principle that even a federal government limited in its ends could employ tremendous discretion to achieve those ends, flowed naturally from his view that the Constitution left the federal government room to grow when acting in response to a truly national need.  Madison believed that the proposed bank was inconsistent with the original assumptions concerning the proper ends for which the newly created federal power would be used.  Madison thought it had been settled at the time of ratification that the federal government lacked the power to charter a national bank.  As a result, Madison came to align himself with the Ant-Federalists in opposition to the bank, and he would eventually articulate the States Rights political philosophy that continues to resonate with many Americans. 

In our constitutional system, the Supreme Court serves as the ultimate arbiter of whether an attempt by the federal government to expand into negative space is permitted.  In his recent book, Packing the Court, historian James MacGregor Burns paints a picture of a Supreme Court that has exercised this role in a reactionary fashion.  That the Court is able to play this role at all is solely the result of the bedrock doctrine of judicial review laid down in Marbury v. Madison.  Burns’ thesis is that this seminal case was wrongly decided.

Burns’ view of American history is sympathetic towards presidents who engage in the type of “transforming leadership” necessary to adapt the nation to new challenges and changing environments.  He criticizes the Supreme Court over the course of our nation’s history for often frustrating presidential attempts at transformative leadership through the illegitimate (in his eyes) vehicle of judicial review.  His book is an indictment of a Supreme Court that serves to further reactionary elements in our society rather than to respond to popular movements for reform (with the exception of the Warren Court, which Burns praises – inconsistently – for exercising judicial review in order to expand the scope of individual rights).

Although Burns views history through the traditional dichotomy of liberalism versus conservatism, we should recognize that the search for negative space is not an ideological issue.  The doctrine of the unitary executive, espoused by many of the leading lawyers in the Bush Administration as the justification for broad executive branch power after September 11, and still embraced by many leading conservative thinkers, is nothing if not a declaration that the Constitution leaves a great deal of negative space for the President to operate in in matters of national security.  In its cases dealing with the Guantanamo Bay detainees thus far, the Supreme Court has not foreclosed the possible existence of an expansive executive power so much as insisted that any unprecedented movement of executive power into spaces left open by the Constitution must come with the assent of congress.

Burns is correct that the Supreme Court has often used judicial review to deny attempts by the federal government to expand beyond the bounds that Madison thought were settled in 1789.  Early in the nineteenth century, Chief Justice John Marshall interpreted the federal sphere quite broadly.  However, later in the Court’s history the justices would rely upon doctrines of federalism to promote a political philosophy where state governments received first claim on the ability to expand into any negative spaces.  As our national economy grew larger and more intertwined, and as the role of the United States as a global superpower required a stronger federal hand in dealing with foreign nations, it became more difficult to argue that state governments could successfully occupy all of these open spaces.  The Great Depression, and two Wolrd Wars, forced the Court to recognize this reality.

In more recent years, the Supreme Court has relied upon theories of interpretation, most notably textualism, as the vehicle for denying the federal government the ability to expand its role beyond delegated bounds.  These theories have the benefit of applying without regard to whether state governments are capable of meeting the same demands that the federal government is seeking to satisfy, and therefore these theories have been more successful than federalism as a means of policing the expansion of the federal sphere in the modern economy.  However, the subjective way in which interpretive theory is inevitably applied has become apparent to all observers of the Court, with the consequence that the Supreme Court’s use of textualism has only served to increase public awareness of the Court’s growing institutional power and also of the ideology of its members.  Persons across the ideological spectrum share a discomfort with these developments.

There are early hints that persons seeking to deny the federal government the negative space in which to grow will next turn to moral philosophy, such as the theory of subsidiarity in the Catholic faith, as a vehicle for policing the federal government.  Whether or not these early efforts will mature into a coherent mode of constitutional interpretation remains to be seen.  If this effort fails, there will doubtless be other arguments advanced by those who seek to deny the existence of negative space in our Constitution.

What is undeniable is that the Constitution of 1789 was not written for a United States that had a complex and integrated national economy and that was a global superpower.  As the President and the Congress seek to navigate in such a world (and indeed, as the general public demands that they do so), some people will see only chaos and a lack of legitimate authority.  Other people will see an attempt to create something out of open spaces.

I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Over the years, I’ve collected accounts of judges reprimanding lawyers for unprofessional conduct related to research and writing.  This one stands out because the judge went several steps beyond chastising the attorney for poor writing.  The judge

• hand-wrote comments and corrections on the motion;
• ordered the attorney to hand-deliver the order personally, along with the marked-up motion, to the client
• ordered the attorney to read local court rules and the Federal Rules of Civil Procedure, and
• ordered the attorney to file with the court a certificate of compliance when he had completed these tasks.

(A note to my first-year students:   I know that getting back marked-up copies of your memos this week is painful.  It would be more painful to have a judge mark-up your writing and then order you to show it to your client.)

I wonder how the client feels in this situation.  I worry about how difficult it is for layperson clients to know which lawyers are worthy of their trust and worth the fees.   Often clients choose among lawyers on the basis of advertising, which leads into the second professionalism discussion that has stuck with me this week, lawyer solicitation letters to individuals involved in car accidents.

In New Jersey, an attorney organization composed primarily of personal injury attorneys requested that the state completely prohibit attorney solicitation letters to accident victims, except in cases where an attorney already had a business relationship or close personal relationship with the person involved in the accident.  Ultimately, the New Jersey Supreme Court Professional Responsibility Rules Committee recommended a waiting period of 30-days for such letters.

Wisconsin has no ban on solicitation letters and no waiting period.  When an individual in Wisconsin is involved in a car accident for which an accident report is generated, that individual will likely receive a solicitation letter from an attorney, even when the accident report states that there were no injuries.  This attorney advertising does not violate Wisconsin ethical rules on advertising, SCR 20:7.1 and 20:7.2, as long as the solicitation letter is not false or misleading and does not create unjustified expectations of the results the attorney can achieve.

My question is whether this type of solicitation via letter, though not unethical, is somehow unprofessional.  I’ve certainly heard from individuals who believe the solicitation tarnishes the reputation of the legal profession.   Some believe the solicitation may manipulate people in a vulnerable position.  On the other hand, individuals involved in car accidents may benefit from immediate assistance from a lawyer because they are in a vulnerable position and need to take steps to protect their rights.

This dilemma is not new.  In reading about client solicitation, I ran across these words from Justice Blackmun:

In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.  Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.

Bates v. State Bar of Arizona, 433 U.S. 350, 371-72 (1977).   I also learned that Abraham Lincoln solicited three different potential clients  by letter in a railroad taxation dispute in Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291 (1855).  These potential clients had adverse interests.  (If you want to read more about Lincoln’s solicitation letters in that case, I suggest Robert F. Boden, Five Years After Bates: Lawyer Advertising in Legal And Ethical Perspective, 65 Marq. L. Rev. 547 (1982)).

Is there something unprofessional about lawyer solicitation letters after accidents?  I wonder what other Wisconsin lawyers think.

(Editor’s note: The nice photo of a mosaic representation of Justice, inside the Wisconsin State Capitol, was found here.)

There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides “[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.” This is the proscription that the Judicial Commission says was violated by the Mitchell ad.

But there is a second sentence. It states that “[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.”

The difference between “shall” and “should” is significant. The preamble to the Judicial Code states that “[t]he use of “should” or “should not” in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.” (emphasis supplied)

Everyone agrees that the ad contained a series of statements which, read in isolation, are true. Almost everyone agrees that this same series of statements, when read together, conveys or implies a message which is, in one or more respects, false. The ad says “Butler found a loophole. Mitchell went on to molest another child.” Someone hearing the ad would likely conclude that it means “Butler found a loophole. As a result, Mitchell went free. And then Mitchell offended again.”

But there is a potential problem. Gableman has free speech rights and it is not an easy question to define the circumstances under which the state can punish speech that it determines to be false. Indeed, some would argue – and Gableman does – that it can only punish speech that is defamatory subject to certain additional constitutionally required qualifications. Because 60.06(3)(c) is not so limited, it is facially overbroad and should be declared unconstitutional.

I don’t see that happening.

But the other day, while discussing the case with a reporter for the National Law Journal, I concluded that this might.

The panel may construe 60.06(3)(c) narrowly to require a literally false statement in much the same way that prosecution for perjury generally requires such a statement. Or it may conclude that it is unconstitutional if applied to statements that are literally true but claimed to convey or imply a false message.

Why would the panel do this? Don’t I think – shouldn’t they think – that the ad is false? I do and they probably do too, but I am – and, by the questions put at oral argument, they are – concerned about the state taking on the responsibility to determine whether political speech – something which is at the core of first amendment protection – would be understood to convey a false message.

This is particularly so in the context of campaign ads that are highly truncated messages (often no more than thirty seconds long) that almost must oversimplify the issues that are discussed.

For example, during the Presidential election, the Obama campaign ran some ads that claimed John McCain would “tax your health care benefits.” That was literally true. It is not unreasonable to further claim that it would be understood by most people to mean that they would have to pay new taxes under McCain’s plan.

But that understanding would be false. McCain was also proposed providing a tax credit that would offset any new taxes for almost everyone. The Obama campaign read some ads that mentioned this credit but others that did not. Still others, while mentioning the tax credit, also referred to a middle tax class hike and asked whether “you” could afford it? Should the first amendment permit the sanctions for such ads? My initial reaction is “no.”

This concern is magnified here because finding a violation of the first sentence of 60.06(3)(c) raises the question of discipline and, while that discipline might be limited to a reprimand or a fine, other potential sanctions – suspension or removal – raise uncomfortable issues about disciplinary proceedings interfering with the result of an election. They aren’t going to happen.

But what about the second sentence of 60.06(3)(c)? It is not what the Judicial Commission relies upon, but might the panel nevertheless observe that the Gableman ad violates this aspirational rule. Maybe it is true, but it is certainly misleading. There cannot be a sanction for violating it, but there certainly can be criticism. Would official disapproval of political speech violate the First Amendment? I think not and it would avoid difficult questions about undermining the outcome of an election. (Although you might make the same argument about a reprimand, such an official disciplinary act may be different, particularly in a system of progressive discipline.)

Cross posted at Prawfsblawg and Shark and Shepherd

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.

This is a fun and — only six days until the Packers’ season opener! — timely article.

First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court.  As a proportion of the Court’s membership, Catholics on the Court currently exceed their proportionate representation in the general public by a significant amount.  This is an astonishing historical fact, although its significance is not self-evident.

Second, Frank Colucci’s book, Justice Kennedy’s Jurisprudence, was recently reviewed  in the Wall Street Journal by Northwestern University Law School Professor John McGinnis.  Apparently, Mr. Colucci does not adhere to the conventional wisdom that Justice Kennedy is an unpredictable jurist whose primary concerns are the aggrandizement of the Supreme Court and the divination of narrow, fact-based holdings.  Instead, and somewhat unexpectedly, Corlucci argues that Justice Kennedy’s approach to the interpretation of the Constitution is best understood as seeking to advance a moral imperative.

Justice Kennedy’s objective, according to Corlucci, is to vindicate and preserve an ever increasing share of individual liberty within our broader society.  Here is the key portion of Professor McGinnis’ review:

Looking for the sources of Justice Kennedy’s moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae.  In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit ‘irreparable corruption’ – a phrase that a secular judge might not have used.  (Justice Kennedy is an observant Catholic).  It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be – because of his emphasis on individual rights – the decisive vote for preserving the abortion status quo.

It is intriguing to consider whether there is, in fact, a demonstrable connection between Catholic social thought and Justice Kennedy’s interpretation of an evolving liberty interest guaranteed by the Constitution.

Should this matter?  Few people would argue that all religiously observant  judges are necessarily intent on imposing a theocratic rule of law (turning the gavel into a cross, as it were).  Moreover, it is neither possible nor advisable to seek to eliminate all religiously-derived conceptions of morality from the judicial decision making process.  However, the intersection of the Catholic faith and the judicial function remains troublesome for some, perhaps because it takes place out of the sight of the public and within the mind of the judge. 

A third recent event raises this same issue.  There has been a great deal of consternation in the blogosphere over Professor Alan Dershowitz’s intemperate attack on Justice Antonin Scalia’s dissent from the Supreme Court’s August 17 order in the case of In re Troy Anthony Davis. 

In that case, Justice Scalia (along with Justice Thomas) dissented from the Court’s order directing the district court to consider whether or not evidence unavailable at the time of trial now indicated that a convicted felon, presently on death row, was in fact innocent.  Justice Scalia disagreed with the Court’s order, stating in his dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” 

Professor Dershowitz charged Justice Scalia with hypocrisy, claiming that Justice Scalia was willing to impose a constitutional rule of habeas corpus that was in conflict with Catholic teaching.  For Dershowitz, it is self-evident that it is immoral to execute a man who you know is innocent.  Apparently it is similarly self-evident that Catholic moral teaching reaches the same conclusion.

If Professor Dershowitz wanted to start a heated debate on the topic of Catholicism and the Supreme Court, he succeeded.  Some of the more interesting responses to Professor Dershowitz include this post by Professor Richard Garnett and this post by Professor Robert Vischer.

 In Professor Dershowitz’s defense, Justice Scalia raised the issue of his Catholic faith first.  In a 2002 article in First Things entitled “God’s Justice and Ours,”  Justice Scalia admitted that he finds it necessary to reassure himself that his interpretation of the Constitution does not contravene his Catholic faith.  In fact, he goes so far as to assert that, if he ever felt that the Constitution mandated a rule that contravened his faith, he would feel morally bound to resign from the Supreme Court rather than to vote to uphold that rule.

Fortunately for Justice Scalia, he has concluded that there is no conflict between Catholic teaching on the death penalty and the manner in which the United States Constitution permits the death penalty to be imposed.  This is because, as Justice Scalia explains, his interpretation of Catholic teaching on this point differs somewhat from the position of Church authorities:

I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. . . . So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign.  

Professor Dershowitz charges that in dissenting from the case of Troy Anthony Davis, on the grounds that the Constitution does not prohibit the execution of a factually innocent man, Justice Scalia is adopting a misguided reading of Catholic theology.  Some will be tempted to charge Justice Kennedy with a similar offense.

Justice Kennedy and Justice Scalia present the positive and the negative aspects of the same photographic image.  It is the picture of a judge trying to reconcile the role of his faith with his responsibilities on the Supreme Court.  We have long recognized that Justice Kennedy and Justice Scalia have very different conceptions about the proper role of a judge under our Constitution.  It is possible that their differing conception about what it means to be Catholic has had an equally profound influence on the divergence of their judicial philosophies.   

Catholics live their faith in a variety of ways, so it is not surprising that this variety of beliefs can be observed on a Supreme Court with six Catholic members.  Religious beliefs influence all of us in diverse ways, as do ideological beliefs, affinities for cultural traditions, and prejudices or stereotypes.  Each person’s understanding of how the world works (or should work) is comprised of a unique stew of multiple predispositions.

However, what happens when these predispositions come into conflict?  In particular, how do we react when our interpretation of the Constitution, as the embodiment of a fervently held political philosophy, comes into conflict with our understanding of the moral teachings of our faith?   Our sacred and secular belief systems must either align or come into conflict, and Supreme Court Justices are no different than the rest of us in this regard.       

Human nature being what it is, we would prefer to avoid the dissonance that occurs within our psyche when the secular and the sacred conflict.  Therefore, our natural temptation will be to engage in self-delusion.  This occurs when we force the interpretation of either our faith or our secular Constitution in a particular direction in order to bring the two of them into alignment.  Justice Kennedy wants to see his faith’s promotion of human dignity reflected in the Constitution.  Justice Scalia wants to reassure himself that his reading of the Constitution does not countenance the exercise of immoral authority.  Not surprisingly, both men see what they want to see.

 All of us begin the act of interpretation knowing what it is that we hope to find.  Is it any wonder that we often shade our reading of the text and precedent in order to arrive at our hoped for destination?  When our mind shades the text in this fashion, we risk doing violence to the meaning of the words we interpret.  The alternative, however, would be to do violence to our strongly held self-image.  Our subconscious mind will not allow this to occur. 

The only solution for a judge placed in this position is to exercise her capacity for self-awareness.  This means pausing before she rules.  During that pause she should self-consciously reflect on her premises, her life experiences, and even her religious beliefs, in order to assure herself that her interpretation of the text is driven by logic and precedent and not by an unconscious desire to rationalize competing belief systems.

Sound familiar?  This is the wisdom imparted by our newest Catholic Justice in her “Wise Latina” speech.

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack.  An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.

Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).

Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act.  Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana.  Looks like a slam-dunk issue on appeal, right? 

To be sure, the briefs in Foster were submitted before Smith was decided, which might possibly excuse defense counsel’s failure to challenge the ACCA sentence in his written filings.  On the other hand, briefing occurred after the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008), which threw open the whole question of which prior convictions count as “crimes of violence” and paved the way for Smith.  In the aftermath of Begay, it is hard to see why any defendant with an ACCA sentence and a pending appeal would not raise the “crime of violence” issue.

Nor was Foster’s lawyer holding back on ACCA in his brief in order to push an even stronger issue.  His brief focused only on whether the evidence was sufficient to support a different sentence enhancement — a line of attack the Seventh Circuit later characterized as “frivolous.”

Whether or not there was a good excuse for the counsel’s failure to raise the ACCA issue at the briefing stage, it is hard to see any justification for what happened at oral argument, which occurred nearly three full months after Smith was decided.  With Foster’s lawyer continuing to push the same losing argument he had put in the brief – or perhaps “push” is too strong a word, as we are told that “Foster’s attorney all but admitted the folly of this appeal during oral argument” — the court advised him of its holding in Smith and invited him “to consider the appropriateness of Foster’s ACCA enhancement.”  The lifeline was tossed . . . and Foster’s lawyer declined to take it.  His response: “I think the case law is clear that firing a handgun in and of itself under the circumstances of a case such as this is, can be considered a crime of violence.” 

In light of counsel’s express waiver of the issue, the Seventh Circuit (per Judge Cudahy) refused to consider it: “We cannot make a party’s arguments for him, or force him to make arguments he seems determined not to raise.”

The case raises difficult questions about the waiver doctrine and the limits of the adversarial system.  The Seventh Circuit framed the issue as one of party autonomy (”We cannot . . . force him to make arguments he seems determined not to raise.”), and I am quite sympathetic to the basic principle of antipaternalism.  One of my favorite cases to teach in Crim Pro is Faretta v. California, 422 U.S. 806 (1975), which recognized the right of defendants to represent themselves at trial — even if it means that they face a greater risk of conviction as a result.  As I see it, Faretta stands for the proposition that defendants have legitimate interests not just in maximizing their chances of a favorable outcome, but also in ensuring that their cases are presented in ways that are consistent with their personal values and beliefs.  Defendants should not be required to present defenses with which they disagree. 

But it seems a bit odd to invoke antipaternalism in Foster.  It is hard to believe there was an informed decision by Foster to surrender a strategic opportunity, as there was by Faretta in surrendering his right to counsel.  Why challenge one sentence enhancement on appeal, but not the other?  Instead, this seems pretty clearly an instance of uninformed waiver – counsel simply did not understand that the governing law had recently changed in ways that mattered to his client’s case.  Whatever we might say about the importance of respecting informed choices, decisions that are based on a mistake are not entitled to the same deference.

The real animating value in Foster is not autonomy, but efficiency.  In Foster itself, it would not have been hard for the Seventh Circuit to make the argument that the lawyer did not make, but where would the line be drawn in future cases?  Making the lawyers’ arguments for them would obviously impose a heavy burden on the court — even more so to the extent that the court would have to disentangle which waivers were truly informed and which were due to misunderstanding.  It is much easier to indulge the legal fiction that the client has given informed consent whenever the lawyer waives a potentially winning argument.  Easier on the court, that is.  When the costs of defendants sitting in prison for unnecessarily long periods of time are factored in, it may not be so clear which direction the efficiency value cuts.

Other new criminal cases last week were:

United States v. Cox (No. 08-1807) (Wood, J.) (”[T]he Government need not prove in a prosecution under 18 U.S.C. § 2423(a) that the defendant knew that the person being transported was under the age of 18.”).

United States v. Gear (Nos. 07-4038 & 07-4039) (per curiam) (holding that prior conviction for reckless discharge of a firearm in violation of 720 ILCS 5/24-1.5(a) does not trigger sentencing guidelines enhancements based on prior convictions for crimes of violence).

United States v. Dooley (No. 08-4131) (Ripple, J.) (reversing defendant’s conviction on wire fraud count based on lack of causal connection between defendant’s actions and communication at issue).

United States v. Bright (No. 08-1770) (Bauer, J.) (affirming defendant’s conviction and sentence over challenges to admission of eyewitness identification evidence, admission of “guilt-by-assocation” evidence, and sentence enhancement based on obstruction of justice).

United States v. Nurek (No. 07-3568) (Sykes, J.) (affirming 20-year sentence for defendant who pled guilty to receiving child pornography over objections to determination of guidelines range and general reasonableness).

What I mean by appellate judicial efficiency is a timely disposal of cases, which would result in a steady flow of decisions released throughout the year rather than at the very end of or after the term.  Lower courts in Wisconsin are seemingly more efficient.  Pursuant to the Wisconsin Court of Appeals’ internal operating procedures, “the average time for rendering a decision should not exceed 40 days, and the maximum time for any case, except one of extraordinary complexity, should not exceed 70 days.”  Pursuant to Supreme Court Rule 70.36, trial courts must decide “each matter submitted for decision within 90 days of the date on which the matter is submitted to the judge in final form,” but this may be extended by 90 days. 

The timely disposal of cases — at all levels of the Wisconsin Judicial system — will result in an efficient judiciary, and it will benefit practicing lawyers, judges, and certainly the parties involved in the case.  Both judges and lawyers, who are required to take continuing education classes, will benefit from a steady flow of cases.  If most cases are released in a three-month period, it is difficult to study all cases in detail.    Those who teach these continuing education classes will likely also benefit from a steady flow rather than a gush of cases that need to be digested quickly and then taught.  The actual parties will also benefit from a timely disposal of cases.  At times, we may forget that actual people have a great amount invested in each one of these cases.  It is unfair to force these people to put their lives unnecessarily on hold while they await a decision.  It is especially troubling that an innocent person could sit in prison while he or she waits for a wrongful conviction to be overturned. 

In conclusion, appellate courts, including those of last resort, should attempt to become more judicially efficient.  While some delay is inevitable, avoidable delay should be eliminated.  The Wisconsin Supreme Court should work towards releasing a steady flow of cases throughout the term.  The United States Supreme Court, by comparison, has already achieved this gold standard.  Of the 74 cases the United States Supreme Court heard this past term, 21 cases were released in the month of June, 9 cases were released in May, 13 cases were released in April, 11 cases were released in March, 5 cases were released in February, 13 cases were released in January, and 2 cases were released in December.  As a result, while the Wisconsin Supreme Court released over 70 percent of its opinions in May, June, and July, the United States Supreme Court released only 40 percent during that same period.

Senator Kyl’s questioning on day two provides a good example of this oversimplification.

And has it been your experience that every case, no matter how tenuous it’s been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it [can] make? Some precedent that he’s cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something.

. . .

I can’t imagine that the answer would be otherwise than, yes, you’ve always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be.

. . .

I’m simply confirming . . . that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren’t cases directly on point. That’s true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

This questioning is troubling because it simplifies the idea of judicial activism to such an extent that its meaning is distorted and as a result misunderstood. 

Rather than argue over the correct definition of judicial activism, which has been debated and blogged about extensively, I write to point out that oversimplifications, such as the one above, are troubling.

Courts of last resort — state or federal — exist to develop the law as opposed to intermediate courts, which are error-correcting courts that ideally do not develop, create, or change law.  If a decision must have a “basis in the law,” i.e., rely on a statute, common law, or a law review article, how can decisions that develop the law NOT be activist?  While presumably not all law-developing decisions lack a “basis in the law” such as those that apply precedent to new factual situations,  it is conceivable that at least some law development occurs without a “basis in the law” as that phrase is defined by the senator.  Answers to questions of first impression may not have a “basis in the law.”  For example, a statute may set forth “the what” but not set forth “the when,” and as a result, a court may have to fill in the missing piece.  If it were true that answering questions of first impression were largely activist, then early decisions in this country and even those in England must have been predominantly activist decisions.    

Now perhaps the Senator’s questioning highlights a poor choice of words rather than a misunderstanding of judicial activism, but regardless, an adjustment is necessary.  When descriptions of judicial activism are broadened as the senator has done, it lends support to those persons who claim judicial activism does not exist.  The Senator’s definition opens the door to call any case of first impression activist because his definition lacks any standard by which to analyze if a decision is activist and it ignores the realities of a court of last resort.  As a result, his definition allows someone to label a decision activist simply because he or she would not have developed the law in that manner. 

Cases of first impression however, are not all activist decisions.  This is true even if there is no governing statute or any case law to guide the decision.  To avoid activism, courts should decide cases in a manner that respects the role of the judiciary.  As stated in Federalist # 78, “[t]he interpretation of the laws is the proper and peculiar province of the courts.”  ”It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.”     

As such, a decision of first impression, or any decision for that matter, can likely avoid the activist label if:

1)      The decision does not ignore authority that could be used to guide the decision.

2)      The decision is a modest decision that takes incremental steps rather than giant leaps that lead to unnecessarily sweeping changes in the law.

3)      The decision is one that allows the legislature to appropriately modify or “correct” the court’s decision of first impression.

4)      The decision does not decide issues of first impression unnecessarily.

In conclusion, oversimplifying judicial activism can lead to troubling results, and thus, we should avoid these oversimplifications and search for a better way to ask the question.  For example, a better way may be to ask if an individual has ever decided a case without relying on any legal principle.  Later questioning by the Senator seemingly moved in this direction when he stated, “[h]ave you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?”

The current debate centers on whether reliance on statutory history is consistent with a plain meaning analysis.  Justice Roggensack has asserted, “statutory history is part of a plain meaning analysis because it is part of the context in which we interpret statutory terms.”  Chief Justice Abrahamson, on the other hand, asserts that statutory history is inconsistent with a plain meaning analysis because if the text is plain, there is no need to go beyond the text.

While the intellectual debate over statutory history is commendable, the arguments thus far have been misplaced, and as a result, we should refocus the debate.  The debate should not center on whether statutory history is consistent with a plain meaning analysis because such a debate does not answer when and how statutory history can be utilized.  As such, the current debate is meaningless.   Rather, the debate should center on whether statutory history is an intrinsic or extrinsic aid to interpretation.    

Permit me to explain by setting forth briefly Wisconsin’s approach to statutory interpretation, which will show that statutory history’s classification as an intrinsic aid or extrinsic aid significantly affects its usefulness.  In Kalal v. Circuit Court of Dane County (2004 WI 58), the Wisconsin Supreme Court reevaluated its approach to statutory interpretation and adopted — some would argue reaffirmed — a more formal, statutory meaning approach.  In short, the court established the following framework: First, if the language is clear on its face, the plain meaning will be applied.  Second, if the statute is not plain and thus needs to be interpreted, intrinsic aids may guide the interpretation.  Third, extrinsic aids may be consulted only if the statute is ambiguous. 

As a result, if statutory history is an extrinsic aid, the history may be used only when there is an ambiguous statute, which is generally an infrequent occurrence.  I, however, would argue that statutory history is as an intrinsic aid for statutory interpretation.  As provided in Sutherland’s Statutes and Statutory Construction, intrinsic aids are canons of construction (e.g., grammar, punctuation, or textual canons), dictionary definitions, titles, context, scope, and surrounding statutes.  Previously enacted versions of a statute fall nicely within the realm of these other intrinsic tools because the focus remains on the statutory text.  One would be confined to the statute’s text — either the current or the previous version.  Unlike typical types of extrinsic evidence, such as common law and legislative history, the legislature has voted on previous versions of a statute.  To the extent that words or phrases have been added or subtracted over the years, this provides great insight as to what the legislature meant when it worded the current version of the statute.   Concerns about legislative history and other materials not voted on by the legislature do not apply to previous versions of a statute.  In conclusion, if we refocus the debate over statutory history, the arguments will likely be fleshed out and the usefulness of statutory history will come to fruition.

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.  An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties.  The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal. 

Even on its own terms, the Umpire metaphor does not seem to accord with human behavior.  Baseball umpires are notorious for having different strike zones, and for applying strike zones inconsistently, in ways that affect the outcome of games.  There have been persistent calls for Major League Baseball to use machines that would call balls and strikes without error, much like the League adopted instant replay to correct mistaken calls by the officials.  If umpires are not perfect, is it fair to demand perfection from judges.   

 In fact, it is a good thing that judges do not all act alike, as if they were machines, and that our system of justice provides room for individualized discretion.  It is in our discretion that we express our humanity.  Judge Jose Cabranes (the “good Hispanic” on the Second Circuit, according to the conservative critique of the Ricci firefighters case) defended the individuality of the judging process in his 1998 book Fear of Judging.  He was writing in the context of the federal Sentencing Guidelines, and their attempt to limit the sentencing discretion of judges:

  “[W]e should start with the simple recognition that the Sentencing Guidelines are based on a fundamental misconception about the administration of justice: the belief that just outcomes can be defined by a comprehensive code applicable in all circumstances, a code that yields a quantitative measure of justice more easily generated by a computer than a human being.  We must recognize, in other words, that no system of formal rules can fully capture our intuitions about what justice requires.  The federal Sentencing Guidelines of today are based on a fear of judging: they attempt to repress the exercise of informed discretion by judges.  Instead, in the typical case, the judge is supposed to perform an automaton’s function by mechanistically applying stark formulae set by a distant administrator.  The unhappy consequences of such a system are borne by all participants in the sentencing process, including the judges themselves.  As one federal judge has put it, the Guidelines ‘tend to deaden the sense that a judge must treat each defendant as a unique human being . . . . [I]t is quite possible that we judges will cease to aspire to the highest traditions of humanity and personal responsibility that characterize our office.”  [p. 169]

 The Umpire metaphor should be rejected for the same reason: it is an attempt to appeal to the fear of judging.  The metaphor is designed to undermine any exercise of discretion by judges in the mind of the general public.  Most significantly, when a federal judge exercises their constitutional power to “say what the law is,” the general public will be primed to respond with resentment towards a judge who failed to act in accord with their expectations — despite the fact that these expectations were unrealistic in the first place.

 The Sotomayor hearings contained a second metaphor that was used to describe a Supreme Court Justice who is not objective.  The Wise Latina is a judge who incorporates her life experiences into her rulings from the bench, and who views the law through the lens of her own prejudices and beliefs.  The metaphor of the Wise Latina was created by Republican Senators in order to represent someone who possesses racial or gender grievances, who holds an ethno-centric world view, and who will choose winners and losers in the courtroom in order to redress past grievances and advance that view.  It was put forth in order to provide a negative contrast to the Umpire metaphor.

 The Wise Latina metaphor is actually a more honest description of what judges do than the Umpire metaphor.  Life experiences do influence how judges view facts and precedent.  However, the Wise Latina metaphor tells us nothing about how a judge should use their life experiences to inform their judgment whilst avoiding the danger of individualized bias.  Judge Sotomayor’s only sin was in admitting that as a federal judge she possesses a range of discretion that many people fear, and that in the case of life tenure judges this discretion is subject only to self-policing.  During the confirmation hearings, Senators Sessions and Kyl tried to argue that the Wise Latina metaphor provided a basis for predicting that Judge Sotomayor would favor ethnic minorities and women in her rulings on the Supreme Court, but they never made the causal connection between their descriptive metaphor and her future propensities.

 Not surprisingly, in her testimony Judge Sotomayor chose to embrace a third metaphor — one that is distinct from either the Umpire or the Wise Latina.  In describing her approach to the law, she put forth a vision of a Supreme Court Justice that I will call the Cabinetmaker.  As Judge Sotomayor described the job, a Supreme Court Justice is like a craftsman (or craftswoman) who takes the raw materials on the workbench (the particular facts of the case and the relevant precedent) and carefully joins them together into an opinion that is solidly constructed as to both form and function.  In so doing, the Cabinetmaker stays focused on the individual task at hand, and on serving the immediate needs of his customer, rather than on advancing some personal agenda to revolutionize home furniture design.  The result is a piece of furniture that reflects the cabinetmaker’s influences, but that does not substitute the cabinetmaker’s own taste for the client’s desires.

There is much to admire in the Cabinetmaker metaphor.  It demands that Supreme Court opinions adhere to an internal formal logic, and that they conform to the facts as found by the lower court and to prior precedent.  This metaphor therefore provides a prescriptive guide to judging.  It holds judges to an objective set of rules and it evaluates the judge’s performance on the basis of how closely they follow those rules.  Personal bias cannot be eliminated, but personal bias is not likely to overcome the formal rules of logic or to force a syllogism to arrive at a particular result.  Judges are more like craftsmen, akin to a cabinetmaker who is highly regarded for the fine construction of his furniture.  Poor craftsmanship will be obvious to most objective observers (my students will no doubt recall my in-class description of Roe v. Wade as a “wobbly three-legged stool”).

 However, despite these advantages, the Cabinetmaker metaphor is likely to prove unappealing to judicial conservatives.  The Cabinetmaker metaphor accepts the status quo, and assumes that change in legal doctrine will be slow and incremental.  It treats all precedent equally.  It incorporates the doctrine of stare decisis and calls for judges to follow precedent in all but the rarest cases.  A cabinetmaker begins each day with the expectation that they will follow the same blueprint that they applied to the last cabinet.  They do not decide one day to stop making cabinets, and become violin makers.

 Originalism has a powerful hold on the minds of judicial conservatives because it is a theory that denies the legitimacy of non-originalist precedent.  Therefore, an originalist judge considers himself justified in refusing to adhere to precedent that he views as “wrongly decided.”  Before any prescriptive model of judging is acceptable to judicial conservatives, it must provide for a means of un-doing liberal precedent.  The judge as Cabinetmaker metaphor does not do this.  Therefore, judicial conservatives will embrace the Umpire metaphor and overlook its obvious defects.

 It would be folly to read too much into these three competing metaphors.  They do not arise from any sort of critical analysis.  The Umpire metaphor had its origin in a comment by Justice Roberts during his confirmation hearings.  The raw materials from which Senate Republicans constructed the Wise Latina metaphor came from the “stump speech” that Judge Sotomayor regularly delivered to various law schools.  The Cabinetmaker metaphor was chosen and emphasized by Judge Sotomayor in order to make her less threatening to moderate Republicans and therefore more likely to sail smoothly towards confirmation.

 None of these metaphors were put forward as a closely argued, carefully considered explication of a particular judicial philosophy.  Instead, they were used as simplistic tools to convey a particular message about what judges do to the general public.  During the course of the Sotomayor hearings, the media inflated the Umpire and the Wise Latina metaphors to the point where they seemed to represent the yin and the yang of theories of judicial process.  As a result, Judge Sotomayor’s Cabinetmaker metaphor came across as evasive.  By presenting a third alternative view of judging, the Cabinetmaker metaphor was perceived as an attempt to change the subject (which it was).   

 However, before we put these metaphors back onto the shelf, to be dusted off at the next confirmation hearing, we should pause to further examine the messages that these metaphors are sending to the general public.  Scientists who study the human brain tell us that metaphors have a powerful impact on the human mind.  This is because metaphors create the internal narrative that our mind uses to understand the exterior world.  Once our mind chooses to adopt a particular narrative, that narrative becomes one of the many “stories” that our brain applies to predict outcomes.

 The recent controversy over the arrest of Harvard professor Henry Louis Gates, Jr. is illustrative.  When we human beings hear the word “policeman,” our mind immediately applies an internal narrative that creates certain expectations of how a policeman should behave (catching criminals, helping victims, acting heroically).  When our brain receives information that a particular policeman has behaved contrary to our internal narrative (i.e., by behaving rudely towards a law abiding citizen), this creates a disconnect between the fact and the narrative that our mind tries to resolve.

 If the policeman narrative has a strong hold on our brain, then the contrary information will provoke an immediate negative emotion in our mind.   This is because this particular policeman did not behave in the way that our internal narrative tells us that a policeman is supposed to behave.  In order to avoid experiencing this negative emotion, our mind may reject the contrary information (the rude behavior didn’t happen) or, in instances where the original policeman narrative has only a weak hold on our brain, replace it with a different narrative (policemen are racists).  Scientists who study the brain tell us that this process occurs immediately, and without any conscious deliberation on our part.

Therefore, the metaphors put forth during the Sotomayor hearings will greatly influence the way in which the public understands how federal judges should behave.  If the public embraces the narrative of a federal judge as an Umpire, then it will expect judges to behave in a way consistent with that narrative.  Most significantly, the public will react negatively to a judge who does not behave in a way consistent with the expectations created by their internal narrative.  I assume that we would all agree that it is dangerous to generate public discontent with the federal judiciary for performing the very role envisioned for them by the Constitution.

 As academics, we try to explain what judges do in the courtroom on the basis of reasoned inquiry.  But our academic theories stand little chance of influencing public opinion if they run counter to the public’s chosen narrative of how judge’s should behave.  Law professors ignore the influence of metaphors at our own peril.

Here’s an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the Fourteenth Amendment: 

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well . . .

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court’s analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform — as I said, I’ve hesitant of prejudging and saying they will or won’t because that will be what the parties are going to be arguing in the litigation. But it is . . .

FEINGOLD: Well . . .

SOTOMAYOR: I’m sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court’s more recent jurisprudence in incorporation with respect to other amendments has taken — has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court’s decision how it looks at a new challenge to a state regulation.

“What is the test” is a question that she could and should answer. Her response is “well, there’ll be one” and the recent jurisprudence is “more recent.”

Here is another response to a Feingold question.

FEINGOLD:

…

So, I’d like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court’s decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It’s looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

Her understanding of the cases is that they were cases.

When Sarah Palin responded to questions by playing a game of Scrabble, folks wondered whether she knew what she was talking about. Here we assume – correctly, I suspect - that Judge Sotomayor is just taking the traditional evasion of Supreme Court nominees to a new level. When you have a 60 vote majority, it is how you play not to lose.

But does this vitiate the Senate’s “advise and consent” function? It may if we believe the hearings should be a vehicle through which it exercises that function. There is no way that anyone, based on these hearings, could know whether Judge Sotomayor is of Supreme Court or, for that matter, district court caliber. It’s an exaggeration, but only a bit of one, to say that, based only on the hearing, I don’t even know if I’d hire her as an associate.

Of course, her answers at the hearings are not all we know. She has a career to point to. She graduated from a top law school and worked as a prosecutor and at an excellent law firm She has functioned as a competent federal judge for many years.

Nor is it evident that hearings will lead to better consideration of a nominee. While all of the Senators’ questions are not incomprehensible or ill conceived, many are both. After all, hearings including interrogation of the nominee have not always been thought to be part of the confirmation process. Justice William O. Douglas, during his hearing in 1939, waited outside the hearing room and sent in a message asking if there were any questions. There weren’t. (There should have been.)

But this was during a time when people really did seem to believe that judging was a mechanical function and that the measure of a judge was pretty much limited to his objective qualifications. Justice Douglas, ironically, did more than most to step on that belief.

Given the fondness of the Congress (and the Senate in particular) for its prerogatives, I can imagine a desire for pushback. Professor Wasserman worries that it may take the form of impeachment when someone like Judge Sotomayor rules in a way that is inconsistent with what was said at the hearings. He says that such an effort is unlikely to get out of the House but that it would be an awful development. I agree.

The only real way for the Senate to pushback is to refuse to confirm someone who is insufficiently forthcoming at his or her hearing. But, in our current circumstance of relatively high political and legal division, its hard to imagine that either the Democrats or Republicans would place, depending on your view, institutional privilege or constitutional function, above a vote on the Court.

And that’s the real story behind this hearing. Quite apart from the affirmations to just “apply the law” or to embrace the lessons of one’s experience and in spite of the characterizations of Judge Sotomayor as a technician or an activist, everyone knows — or thinks they know — how she will vote on a variety of issues. Like Chief Justice Roberts and Justice Alito before her, that is why she was nominated. It is why she will be confirmed. Whether everyone was right will remain to be seen.

Cross posted at Shark and Shepherd.

It took Judge Benjamin Cardozo about two and a half pages to write Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). Less than forty years later, it took Justice Roger Traynor only about one page more to write Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963). Shortly thereafter, here in Wisconsin, it took Justice Bruce Beilfuss only eight pages to write Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). All three are landmark opinions in their respective jurisdictions, with the first two having national status. [All references here are to West reporter pages.] 

In 1978 volume 83 of the second series of the Wisconsin Reporter was published. The average opinion length of Wisconsin Supreme Court cases in that volume was a bit under twelve and a quarter pages. The longest opinion was thirty-nine and a half pages. Twenty years later in 2008, the average length of the court’s opinions in volume 312 of the same reporter was a bit over fifty pages. The longest was eighty-four. On July 14, a unanimous court decided a relatively easy issue, but there were also two concurring opinions going on and on about an issue not even before the court. [2009 WI 78] WHY?!

It is obvious that the advent of computers and word processing has had an impact on the length of judicial opinions today.  Now, a jurist need not worry about asking an administrative assistant to retype significant portions of an opinion after editing.  The jurist need not proof read various revised copies of an opinion or ask a law clerk to do so.  Now it is easy for a jurist to pull quotes from half a dozen or more authorities that support his or her position, instead of one.  With computerized legal research, the quoted material can be pulled from its original source and easily placed into the opinion – no retyping or proof reading involved.

Nevertheless, today’s appellate jurist should be able to make a concise statement of involved facts; state the issue or issues posed; and, apply old law or fashion new law to resolve the case in a lot less space than they are taking.  Sometimes one comes away from examining a court’s advance sheets with the impression that the various jurists on the court are playing a form of “can you top this” as to opinion page length: “Mine was seventy pages long, yours was only sixty.”

Verbosity reduction would be a boon to the bar.  The cost to clients for legal research could be reduced.  It would also ease the minds of law faculty members who like to have their students read and analyze cases other than the highly edited ones that appear in casebooks.  This is especially so in Wisconsin due to the diploma privilege.  Professors seeking tenure could avoid concern about “assigns too much outside work” appearing on their evaluations by students.

Now some may say it is strange for the co-author of a two volume treatise on punitive damages to be a critic of the length of other peoples writing.  That work, however, has twenty-four chapters and attempts to analyze various aspects of the law in each jurisdiction in the country.  Law firms and lawyers need not buy it or study annual supplements or chapter revisions.  They do, however, have to review advance sheets of opinions of the courts in their jurisdictions to stay abreast of changes in the law and attempt to understand those changes.  Jurists should follow the advice often given to speakers at luncheons or dinners:  Be brief and be seated!

One common approach is to wonder whether this is “racist.” Shortly after the nomination was announced, I did a segment with Joy Cardin on Wisconsin Republican Radio. She seemed perplexed that I refused to assume the “racism” position, playing a clip of Tom Tancredo making that charge as if it to tell me that I wasn’t a team player.

But I think it is unfair to say that she was making a claim for some form of racial superiority.

Another common approach is to say that she was simply suggesting that judges need to be aware of the biases that arise from their backgrounds so that they can check them, and that a panel consisting of persons with different backgrounds will be more likely to, collectively, identify and deal with these biases.

I think that Judge Sotomayor almost certainly believes this, and I agree that there is a great deal of truth in it, although I may be less likely to believe that gender or ethnicity implies common histories and assumptions.

The reason that the debate has not — and should not — end with the second approach is that it is — literally — not what she said, both in the La Raza article and on other occasions. 

Although it seems reasonable to explore these statements during the hearings, I am not confident that it will be done by the Senators in an incisive way or that Judge Sotomayor will depart from her talking points. What’s happened so far this morning confirms that.

I would suggest a third meaning – or group of meanings. Judge Sotomayor may have been saying something like a juridical version of the concept of the epistemological privilege of the poor advanced by liberation theologians. The idea is that the oppressed have a special insight into the nature of and reasons for their oppression. John Yoder, for example, writes that if you see things from below, you will see them as God does.

Of course, Judge Sotomayor was making no theological claim, but she may have been saying that, given her understanding of the nature of our society, the perspective “from below” may be more accurate.

A “thinner” variation of this view might be something like John Hart Ely’s argument for a juridical hermeneutic that concerns itself with protection of those who may be less able to protect themselves in the political process.

For a variety of reasons, I disagree with both variations on this view, but I am not unsympathetic with its underlying rationale and don’t think it’s fair to call it racist. Perhaps it is not at all what Judge Sotomayor had in mind. Still, I think that the extent to which a judge believes and is informed by the assumptions that inform it and its implications for judicial decision-making is fair game.

Cross posted at Shark and Shepherd.

Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading.  The counts were factually linked: Yeager’s alleged fraud was that he knowingly participated in making false statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well.  At trial, the jury acquitted Yeager of fraud, but hung on insider trading.  A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson.  In Yeager’s view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors.  If he did not know about the gap between what investors were told and the actual state of affairs, then the government’s insider trading theory would collapse.  In the government’s view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe.  The district court agreed with the government’s view, but the Fifth Circuit reversed.  The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury’s treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note. 

First, the Court limited its analysis to the purely legal question of whether a logical inconsistency between acquitting on some counts and hanging on others necessarily denies the acquittal of preclusive effect.  The Court thus declined the government’s invitation to reexamine the Fifth Circuit’s holding on what exactly the jury decided in its acquittal; the Court simply accepted as its starting premise that the jury acquitted Yeager because the government did not prove he knew the statements at issue were false.  “We decline,” as the majority opinion put it, “to engage in a fact-intensive analysis of the voluminous record, an undertaking unnecessary to resolution of the narrow legal question we granted certiorari to resolve.” 

The majority’s cavalier treatment of the factual question provoked a concurrence from Justice Kennedy.  It also brought to my mind some of the discussion at the Criminal Appeals Conference here earlier this week about the disengagement of appellate judges from basic error-correction functions.  Paul Carrington, in particular, criticized the apparent preoccupation of appellate courts with law-making, to the detriment of other endeavors that may seem less exalted to judges, but are still vitally important to litigants.  As I understand it, Carrington was really speaking of the intermediate federal appellate courts, but I wonder if similar arguments might fairly be extended to the Supreme Court.  Althought the Supremes do occupy a different position in the federal court system, the lower-court judges may still take their cues from the Justices in deciding how to value different judicial activites. 

Second, the factual issue the Court declined to grapple with would have been easy to decide if the jury had been given a special verdict form and required to state what it found with respect to the different elements of the charged offenses.  I’ve never understood why special verdict forms are not used more frequently.  Yes, they would make the jury’s job more complicated.  But, in addition to helping sort out Double Jeopardy issues after the fact, they would also force the jury to pay closer attention to each element, thus reducing the likelihood of logical inconsistencies in the outcome.  When I served on a civil jury a few years ago — yes, a law professor was inexplicably permitted to serve on a jury! — we used a special verdict form that required an express decision on each element.  During the deliberations, it became clear that several jurors were prepared at the outset to render a quick plaintiff’s verdict, but working through the elements one at a time caused these jurors to focus on weaknesses in the plaintiff’s case they had not appreciated at first.  Without the discipline imposed by a special verdict form, I doubt these jurors would have been brought around to see these problems.

Third, I was struck by Yeager’s complete discounting of the significance of hung counts: “Hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. . . . [T]he fact that a jury hangs is evidence of nothing — other than, of course, that it has failed to decide anything” (14).  As Justice Scalia observes in his dissent, this seems a considerable overstatement.  A hung jury is surely “evidence” of something: it means that at least one juror concluded the government satisfied its burden of proof and that at least one juror concluded the contrary, and it supports an inference that the case is sufficiently close that reasonable minds may differ on whether the defendant ought to be convicted. 

Moreover, Yeager’s reasoning on this score may prove too much.  The majority put it this way:

A host of reasons – sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few — could work alone or in tandem to cause a jury to hang.  To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room.  But that is not reasoned analysis; it is guesswork.

Yet, much the same could be said about acquittals.  We don’t really know, for instance, whether Yeager’s acquittal was a result of confusion, compromise, exhaustion, or nullification.  Ashe v. Swenson assumes a careful rationality behind jury decisions — an assumption that is not well supported, as I understand it, by the research on jury decisionmaking. I would think the assumptions especially dubious in a complicated financial fraud case like Yeager, in which the trial lasted 13 weeks, and the jury had to wade through no fewer than 165 counts.

The majority was trying to show that acquitting intrinsically carries more meaning than hanging in order to reconcile the collateral estoppel doctrine with the hung-jury rule.  The dissenters downplayed the distinction in order to limit the reach of the collateral estoppel doctrine; indeed, they made clear they thought Ashe to have been wrongly decided.  But seeing the meaning of an acquittal as no less mysterious than that of a hung jury might instead lead to the opposite conclusion: instead of Ashe, we could toss the hung-jury rule overboard, precluding retrial of hung counts across the board.  After all, it is only a matter of convention that we see an acquittal as a loss for the government and the hung jury as something else; in either scenario, the government has failed to carry its burden of convincing twelve jurors (or a somewhat smaller number in a few jurisdictions) of the defendant’s guilt beyond a reasonable doubt.  Perhaps the government’s failure in both scenarios should carry the same Double Jeopardy consequences.

Cross posted at PrawfsBlawg.

It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

He’s right about state judicial elections. If I recall correctly, they began with Mississippi in 1832. I agree that Mike McChrystal does capture something important about why the majority acted in the way it did, but I think that it might be not simply a judicial gag reflex. I think there may be some instruction to be found in the structure of the constitution. I’m still thinking on it, but it might go something like this.

The Caperton majority was concerned with the potential for bias when a  person with a case before the court “had a significant and disproportionate influence in placing the judge on the case” through campaign contributions or direction of the judge’s campaign.

Why should the potential for bias be limited to the context of judicial elections? The potential for bias presumably arises from the “debt of gratitude” on the part of a judge that might “lead him not to hold the balance nice, clear and true.” A man should not, the majority said, choose the judge in his own case.

But, of course, a man (or, in some cases, a woman) chooses the judge in his (or her) own case all the time.  The President (or the Governor in appointive states) chooses judges that proceed to sit on cases in which the administration has a vital interest. George W. Bush had much more influence on the judicial fortunes of Chief Justice John Roberts than Don Blankenship had on those of Justice Brent Benjamin. Might he have a debt of gratitude that might prevent him from holding the balance nice, clear and true in a case raising, I don’t know, whether waterboarding is prohibited by 18 U.S.C. § 2340?

One answer would be to say that the Constitution itself provides for the appointment of judges by the executive. While there is no logical inconsistency between executive appointment and recusal in cases in which the appointing executive is a party or has – let’s say – an extraordinarily strong interest, the two ideas rest uneasily together. It may be that we ought not presume that the Bill of Rights was intended to disable recently appointed judges from sitting on cases involving –  or of great importance to – the appointing executive.

But might not this tell us something about the nature of the due process guarantee? Does it suggest that there was not and could not have been an understanding that due process is offended by the mere fact that a litigant had a key role in the judge’s elevation to the bench?

This may not mean that the outcome in Caperton was wrong. One could argue that the executive, as opposed to a private party, does not expect any particular result but that seems to beggar reality.  Executives most certainly choose judges based on expectations regarding the way in which those judges will approach cases. FDR did not suggest his court packing plan simply because more justices would improve his odds.

But maybe we can say that it would be a rare case in which the executive appointed a judge seeking a particular outcome in a specific case. She might want judges who are tough on crime or empathic. She may seek originalists or those committed to democratic constitutionalism, but she is unlikely to be looking for someone who will rule for the state in a particular case. This is not to say that this could not happen, it’s just that we ought not presume it will be so and call the entire process into question.

If that’s true then maybe Caperton was rightly decided. But it may also suggest a limit on Caperton. Just as the President or, in some states, the Governor is constitutionally empowered to select judges, so are citizens in states with judicial elections constitutionally empowered to select judges -including through participation in the electoral process by making permitted campaign contributions and speaking on matters of public import (see Wisconsin Right to Life v. FEC).

On this view, Caperton ought not to be expanded to cases in which the contributions or expenditures in question were not made by a party to a particular case pending or imminent but by persons who are looking to  elect judges thought to have preferable philosophical dispositions. In other words, it should be limited to the particular principle that the court said it was applying to Caperton’s case and that its broader endorsement of a due process right to recusal in cases presenting the potential for bias ought not to be expanded.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.

It was another Chief Justice, John Marshall, who famously asserted the traditional common law rule that governed the role of the Supreme Court in the administration of justice. In Marbury v. Madison, Justice Marshall wrote:

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

By demanding that the judicial remedy be clear and manageable before the Court should undertake to recognize the existence of a constitutional right, Chief Justice Roberts would transform judicial restraint into judicial timidity. For example, one could easily take the holding of the Supreme Court in Brown v. Board of Education – that the maintenance of segregated schools for blacks and whites violates the Equal Protection Clause – and generate 40 unanswered questions:

1. Is the proper remedy for segregation the forced busing of students to different schools?

2. Should busing plans be designed to achieve the integration of each individual school or is it sufficient that the school district as a whole be integrated?

3. Should busing plans incorporate districts without a history of discrimination if doing so will aid in the creation of a larger integrated educational system?

4. How long should forced busing plans be maintained before integrated school districts are allowed to naturally slide back towards segregation?

5. Can school districts without a history of intentional segregation choose to voluntarily impose busing plans that create integrated schools?

I could go on and on, as there is a two decade history of busing litigation in federal courts that worked through these and countless other questions in the wake of the Brown decision.

These cases constitute the far end of the spectrum in terms of federal judges leaping into the great unknown in order to craft a remedy for a newly created constitutional right. Yet Justice Roberts seems to suggest that the lesson to take away from this experience is that the Supreme Court should not have overturned Plessey v. Ferguson and ordered the desegregation of public schools. He suggests that if the Justices cannot anticipate all of the issues raised by an attempt to remedy the violation of a constitutional right, perhaps the right shouldn’t exist at all. I prefer Justice Marshall’s classic definition of the judiciary. If there is a violation of a legal right, it is the obligation of the federal courts to find a remedy.

You know (or I’ll tell you) the basic facts. Massey has an important case before the West Virginia Supreme Court -  an appeal of a $ 50 million verdict against it and in favor of Caperton and others. Massey’s CEO makes independent expenditures in the amount of $3 million in support of candidate Brent Benjamin. Benjamin wins and so does Massey – by a 3-2 vote with now Justice Benjamin in the majority.

The Supreme Court held, in a 5-4 decision, that Benjamin’s failure to recuse himself violated Caperton’s due process rights. So what’s the problem?

As Chief Justice Roberts argued in dissent, this could be a hard case that makes bad law. Heretofore, the circumstances in which the due process clause might compel a recusal have been fairly limited. The Caperton majority announces a broader right, suggesting that recusal may be compelled when, viewed objectively, a judge is unlikely to be neutral or there is an unconstitutional “potential for bias.”

The question becomes how aggressively this standard will be applied. In the context of this case, the Court identified the controlling principle as requiring recusal when a contributor with a personal stake in a case “had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judges the judge’s election campaign when the case was pending or imminent.”

But is that it? What if the contributor is an interest group, say a business association or the teacher’s union? What if the group is not a party to the case, but has a general interest in or has taken a position on the outcome? What if the alleged problem is not a contributor at all, but a judicial candidate’s announcement, not of how she would decide a particular case, but of her general judicial philosophy or world view?

In Wisconsin, there have been calls for Justices to recuse themselves in just those circumstances. Justice Annette Ziegler has been criticized for failing to recuse herself in a case where an independent group who supported her election was not a party, but had filed an amicus brief. Justice Michael Gableman has been asked to step aside in a criminal matter because he – and groups supporting him – said he was tough on crime. (If that works, there will literally be no one who has ever had a contested race who can sit on a criminal case.)

Both results seem inconsistent with the Court’s precedent in other areas. Independent groups have a right to speak as do judicial candidates. It would seem inconsistent with those cases – and perhaps the very idea of judicial elections – to make recusal the price of speech.

The other interesting feature of the case was the dispute between the majority and the dissent over the need for a clear standard. As is often his wont, Justice Kennedy’s formulation of the basic due process mandate is broad and susceptible of application in a large number of cases. It maximizes judicial discretion. Chief Justice Roberts was sharply critical, listing 40 substantial questions left unanswered by the majority opinion.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program. 

 In addition to the various presenters, Professor Paul Secunda also provided participants with helpful feedback. The topics and discussion on each of the drafts were fascinating and brought us on a beautiful journey throughout many different areas of the law.

Professor Phoebe Williams opened the day by presenting a paper on “Age Discrimination as a Barrier to the Provision of Health Care,” in which she analyzes the Age Discrimination Act of 1975 and advocates for the creation of appropriate data collection and research models to effectively identify and redress those instances where advanced age is illegitimately considered by health care providers.

Professor David Papke then followed with a paper on “Law, Legal Institutions, and the Criminalization of the Underclass,” which represents one of the chapters of  a planned book on the analysis of the relationship between legal institutions and the “underclass” in the United States.

Also related to Criminal Law, Professor Greg O’Meara presented a paper on habeas corpus review for state prisoners, in which he challenges the belief, almost taken for granted after passage of the Antiterrorism and Effective Death Penalty Act of 1996, that habeas claims are ineffective.  Professor O’Meara’s paper will be part of the Conference on Criminal Appeals, which has been organized by Professors O’Hear and Oldfather and will take place at Marquette Law School on June 15-16, 2009. The paper will also be published in a special symposium issue of the Marquette Law Review.

The Workshop continued with the presentation of Professor Vada Lindsey on the wrongs of the “Earned Income Tax Credit.”  In this paper, Professor Lindsey criticizes the effectiveness of the EITC, particularly insofar as it fails to encourage saving by the working poor.

Professor Lisa LaPlante followed with a presentation that brought us to a different dimension of the law: international law. In her current project, starting from the analysis of the conviction of former Peruvian President Fujimori, Professor LaPlante considers the issue of criminal accountability for wars on terror and human rights violations by heads of state.

Professor Nadelle Grossman then brought all of us back to our classrooms by discussing her current research project: how traditional law school teaching, which is based primarily on case law, fails in preparing students for transactional practice. In her paper, Professor Grossman highlights the gap between the reality of legal practice and law school teaching, criticizes the lack of valuable materials for teaching transactional law and practice, and calls upon law school curricula to bridge this very important gap.

Next, Professor Michael O’Hear presented a draft of his article “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experience,” which he will also present at the Criminal Appeals Conference and which will be published in the symposium issue of the Marquette Law Review. In his paper, Professor O’Hear proposes a set of principles to guide the appellate review of sentence explanations in jurisdictions, such as Wisconsin, that lack mandatory sentencing guidelines.

I then concluded the day with a presentation on “The Case for a Fair and Balanced Protection of Geographical Indications of Origin,” which addresses the reasons why we should protect these “new” types of intellectual property (which refer to names such as Prosciutto di Parma, Chianti, Bordeaux, Budwar Bier, or Idaho Potatoes) and the limitations that should apply to these rights. Unfortunately, I had no time to provide tastes of the many (good quality) food and drinks I mention in my paper!

Thank you again, Professor Oldfather, for organizing such a great day of legal discourse and intellectual exchange at Marquette Law School.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Shullman only studied ten cases, but, the article reports, Chief Justice Roberts confirmed the result in his own, larger study while he was a circuit court judge.  

A recent, much more thorough study, accepted for publication in the Washington University Journal of Law and Policy, seems to prove the correlation exists.  From the abstract,

This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner’s attorney the Court is significantly less likely to reverse the lower court decision.

The NYT remarks that Chief Justice Roberts “sounded both fascinated and a little deflated by the results of his experiment. ‘The secret to successful advocacy,’ he said playfully, ‘is simply to get the court to ask your opponent more questions.’” 

The result seems obvious.  It is human nature, at least among lawyers, to want to interrupt and ask questions of someone you disagree with, especially if the person’s answers are not satisfactory.  In other words, the side that has a sound, convincing answer for every question has created a better argument.

Now, if only a study could show how to have a sound, convincing answer for every question in every argument.  That would be a real secret to successful advocacy.

As we await word on the nomination of Justice Souter’s replacement on the Supreme Court, many observers are wondering whether the change in personnel will make any difference in the Court’s jurisprudence.  The consensus seems to be that the direction of the Court will not change significantly.  Depending upon whom President Obama nominates, however, there is one area where Justice Souter’s replacement may make a difference.

Twice in our nation’s history, we faced periods when the presidency and Congress changed hands from one political party to another, and the victorious party embarked on an ambitious legislative program, only to be frustrated in their efforts by a Supreme Court dominated by holdovers from the prior regime.  The first time this happened was in 1801, when the Republicans (as they were then called) routed the Federalists led by John Adams.  Thomas Jefferson and his fellow Republicans took power only to clash with John Marshall and other Federalist judges.  The second time this happened was in 1932, when Franklin Roosevelt and the Democratic Congress passed the legislative program they called the “New Deal” only to have a Supreme Court dominated by Republican appointees strike down important elements of that program as unconstitutional.

Are we currently experiencing a third such period of conflict — where the Supreme Court will frustrate and delay the legislative priorities of the two political branches under the control of the Democratic Party?  On most subjects, the answer is “no.”  On issues such as civil liberties, separation of powers, and federal vs. state authority the Roberts Court does not seem to have a majority bloc capable of consistently advancing conservative principles.  This is primarily due to Justice Kennedy’s frustrating refusal to be pigeonholed into any clear ideological camp, preferring instead to chart a middle course of narrow, fact-based rulings.  With Justice Souter’s retirement, it appears that the Court will remain one vote shy of a consistent conservative majority.

 However, there is one subject area where the potential exists for a showdown between a solid conservative majority of the Justices and a more liberal Congress and President:  the area of civil litigation to enforce economic rights.  Faced with pervasive insecurity among the general public concerning its economic future, the Democratic Congress will be tempted to create new legal rights in matters of employment, financial markets, and health care.  Whether these rights are effectively enforceable in the courts will turn on seemingly mundane questions of civil procedure.

In recent years, the Supreme Court has construed the enforceability of congressionally created rights quite narrowly, and in ways that have limited the ability of aggrieved individuals and businesses to sue.  There seems to be a bloc of five Justices that views civil litigation in the federal courts as unduly expensive and too easily abused by the plaintiffs bar.  In several recent cases this bloc has frustrated the attempts of Congress to enlist the federal courts in the enforcement of congressionally created economic rights.

Justice Souter voted with the majority in many of these cases, such as Tellabs, Inc. v. Makor Issues & Rights, Ltd., (strictly construing pleading standard in securities fraud litigation); Credit Suisse Securities v. Billing, (holding antitrust claims subject to dismissal where securities claims are available); and Bell Atlantic Corp. v. Twombly, (importing the heightened pleading standards of securities fraud into antitrust law).  These and similar cases can be criticized as intruding into the province of the jury, by allowing federal judges to dismiss cases on the pleadings where the judge considers the factual allegations implausible but a jury might disagree.  One notable exception to this voting pattern is Ledbetter v. Goodyear Tire & Rubber Co., where Justice Souter dissented from the majority’s less than empathetic holding that the statute of limitations in a pay discrimination case brought under Title VII begins running the very first time that the plaintiff receives disparate pay.

The Supreme Court’s willingness to impose procedural hurdles on litigants would seem to spell trouble for any future Congress that seeks to expand consumer or economic rights through the use of civil litigation. The Roberts Court seems to see itself as a defender of the scarce time and resources of a federal court system overburdened by litigation of dubious utility.  Certainly the Court’s recent rulings in business cases serve to undermine liberal concepts of notice pleading.  However, because Justice Souter often provided a fifth vote in these cases, it is possible that his replacement might provide the crucial vote to reverse this trend.

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits?  How about Meyer and Pierce?  Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else?  And what about abortion?  There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they?  Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.” 

Although I have argued against Justice O’Connor’s endorsement test in Establishment Clause cases, empathy might help us see that the harms stemming from government endorsement of religious principles flow as well from the government’s disapproval of those principles.

The endorsement test is a useful example, I think, because it also demonstrates the danger in interpretive methods that do not sufficiently bound empathy and the predilections of the judge. As was true of so much of Justice O’Connor’s jurisprudence, the test maximizes judicial discretion. It tells the judge to prohibit endorsement but then defines the concept in a way that alows the judge to completely contruct its presence or absence. The court is not to look at whether real people perceive the endorsement of religion but whether a person of the judge’s imagining – someone who is familar with the text of the first amendment and the history and purpose of the challenged practive – ought to perceive. Not surprisingly the test came to be known by the acronym of WWSD – What Would Sandra Do?

Maybe Catholic legal thought has something to tell us about this as well. Subsidiarity can be a maddeningly elastic notion, but doesn’t it remind us that the courts are only one of the institutions ordained to create justice and that they ought to operate within their sphere of authority. If that’s so, then using, in Orin’s phrase, any “appreciable legal ambiguity” to rule in a way that “furthers whatever normative vision of the law that the judge happens to like” is problematic from the perspective of Catholic legal theory.

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism.  “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case. 

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit.  (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.)  “Textualism” demands respect for the clear meaning of these words.  Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations. 

As history shows, the apparently clear meaning of text can be easily distorted or disregarded.  In numerous rulings after Plessy v. Ferguson, 163 U.S. 537 (1896), courts interpreted “separate” rigorously and “equal” with great imprecision.  In Slaughter-House Cases, 83 U.S. 36 (1873), the Privileges and Immunities Clause of the Fourteenth Amendment was summarily eviscerated.  Similarly, in D.C. v. Heller, 554 U.S. 290 (2008),**  the opening clause of the Second Amendment was voided.  In decisions such as Crawford v. Washington, 541 U.S. 36, courts have given open lists of factors to consider in certain situations, which list of factors lower or later Courts treat as if exhaustive requirements.   In any of these cases, activist implementation of personal policy preferences masquerades as “textualism.”  These behaviors could be called “pseudo-textualism.”

The value of textualism is also of no assistance when an issue or controversy arises regarding a matter not yet referred to directly by any law because the courts or legislative bodies remained silent on some now-controverted matter.

If the plain words of a law can be subverted to advance a personal agenda, think how much more difficult it is to faithfully adhere to the virtue of originalism.  How do we know what the “original intent” was of people long dead? 

If the Framers fully recorded their intent, then we can examine those records.  But all written records fall under the textualism paradigm, and all are equally subject to abuse as discussed previously.  Since the best and often the only record of the Framers’ intent is the words they used to write their law and those best word are subject to misuse, other written records are even more vulnerable to “pseudo-textualism.”  Court decisions usually present easier problems because courts usually explain their purposes in a decision.  However, faithful analysis of any written record of intent is guided by textualism, and is subject to the same historically demonstrated abuses of “pseudo-textualism.”

Where the laws are silent or records of intent are missing, courts must find other means to determine the intent of the Framers.  Determining the intent of an accused is a common problem when intent is an element of a crime, so at first blush determining the Framers’ intent in some law seems to be a manageable problem even without a written record of intent.  However, determining the original intent of laws decades or centuries old is more complex than determining the intent of an accused felon.  Intent can be surmised by analysis of circumstances surrounding the act in question.  When a jury is asked to render a verdict based on circumstantial evidence of intent, the jury examines the circumstances with their contemporary understanding of contemporary situations and contemporary expectations.

When attempting to apply this strategy to the intent of a law written long ago, the contemporary perspective is unavailable.  Which circumstances mattered at the time?  How would the Framers have reacted to the social and technological changes occurring since the law was given?  At this point, historical analysis must replace legal analysis.  But this is problematic because even historians disagree about the meaning of historical events and circumstances.  All historical analyses are fraught with investigative biases.  And these are the experts!  There is no reason to place any confidence in the ability of jurists acting as inexpert historians to do as well, much less to do a better job.

To supplement an inconclusive record of intent, courts have analyzed closely related activities or enactments by those who were contemporaries of the Framers.  In the recent Heller decision, the Court examined firearms ordinances contemporary to the Second Amendment on the presumption that these would illuminate what the Framers intended by the Second Amendment.  In Crawford, the Court examined the history of the confrontation right.  In both of these cases, the Court majority and dissenters examined the same history and came to contradictory conclusions.  How can we understand this except that in each instance, historical examinations aimed at finding the Framers’ intent resulted in something else?  The jurists found historical evidence inconclusive, while others “found” it supporting their own personal policy agendas.  This latter behavior could be called “pseudo-originalism.”

The apparent objective nature of “judicial restraint” is a mirage.  Except in those rare instances where the law is blessedly clear, courts, especially at the appellate level, examine challenged laws in the course of their duty.  Even if they do their work by the standards of “judicial restraint,” they must apply their own sense of what proper policy and standards apply at each stage of the analysis.   When the words of the challenged law are not precisely on point or the intent of the Framers is unclear, the values of judicial restraint provide only a non-exhaustive list of factors to consider.  They are not a complete exposition of how to arrive at a proper decision.

When examining the rationale for a law, what does restraint require when the Framers’ rationale or premises are found faulty?  Does “restraint” mean adhering to the result however faulty its derivation?  Or does “restraint” mean adhering to the reasoning process, but taking into account updated facts, and adhering to the outcome even if the Court doesn’t like it?

The ambiguous guidance of “judicial restraint” is not commanded by the text of the Constitution.  Worse, the Ninth Amendment makes no sense except to command protection of individual rights enumerated nowhere in the Constitution.  It is a law whose narrow reading compels a broad interpretation of individual rights.  But how do jurists find these rights?  MORE IMPORTANTLY, how did the Framers intend us to find these rights?  In the rights the Framers recognized in 1790?  Or in the rights the Framers would have reasoned to if they knew what we have since learned about the human condition?  However we answer this question, our answer both informs and is informed by our personal beliefs.  We must at least flirt with “activism.”

Here is the crux of the problem: “judicial restraint” is a policy position.  How much respect is “sufficient” for precedent and legislative prerogatives?  Which of several textual interpretations is controlling?  And why?  What facts are most persuasive regarding the Framers’ several possible or likely intentions?  None of these questions have strictly objective answers; all require a court to make judgments about history, language, political or social theory, or legal philosophy.  Whenever human beings make decisions like these, with the weight and impact of judicial decisions, they necessarily must employ their own personal moral compasses to evaluate the weight and implication of the evidence.  They must be guided by their own personal beliefs.  They must flirt with “activism.”

Bald-faced disregard of law is not a behavior the courts should ever engage in.  But laws will always be flawed; they will be incomplete, incoherent, or ambiguous.  Courts may endeavor to achieve faithful interpretation and enforcement under the banner of “restraint,” but inevitably they will come to situations where familiar landmarks fail.  At that point, courts must either duck the issue or find just, equitable solutions.  To avoid negligence, courts must give regard to their own sense of right and wrong.   They must flirt with “activism.”

Some may say this puts us on the slippery-slope to ruin.  To this I can only say: life is lived on the slippery-slope to ruin.  Every day.  Whenever a court does as they all eventually must do, and makes a difficult decision, there will be those who will disagree with the court.  This is always so because any decision at the juncture of power and propriety will annoy someone.  And some of those so annoyed will complain of “judicial activism.”

** In the interests of full disclosure, I do believe in an individual constitutional right to keep and bear fire arms, based not on the Second Amendment, but on the Ninth.  My complaint with Heller is not with the result, but with the implementation by the Justices of their personal agendas; my complaint is with their activism.