Archive for the ‘Jurisprudence’ Category

The Most Dangerous Supreme Court Case

Written by Rebecca Zietlow on July 23rd, 2009

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim broughashcroft_CV_20090519130315t by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Racial Justice After Ricci

Written by Rebecca Zietlow on July 9th, 2009

As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination new-haven-minority-firefighters.pngin our country which has subordinated racial minorities, Ricci is just the latest in a line of cases where the Court makes it clear that it will apply the highest level of scrutiny to government attempts to remedy that history. What is a city like New Haven to do to attempt to provide more opportunities for upward mobility to government employees of color? Standardizes tests, like that in Ricci, could theoretically be useful to reduce the level of discretion in hiring and promotion decisions. Less discretion should mean less opportunity for race discrimination. Yet given that one of the many issues that plagues communities of color if poor public education, it is not surprising that job and promotion candidates of color don’t score as well on written standardized tests.

After Ricci, cities like New Haven better be sure that the test is valid before they use it, because afterward, it’s too late to discard the results no matter how discriminatory their impact might be. Could cities like New Haven try to remedy the racial disparity by giving extra points on the promotion scale to candidates of color? No way, the Court has made that clear. Theoretically, they could lobby their local government officials for help.  Yet under the current Supreme Court’s jurisprudence, it’s hard to see what those local officials can do, except as Bobby indicates below, hope that candidates of color can “pull themselves up by their bootstraps” and improve their situation on their own.

Out with a Whimper

Written by Rebecca Zietlow on July 2nd, 2009

The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue.  And, despite disparaging remarks and jokes during the oral argument over the case, eight members of the Court agreed that strip search of a 13 year girl alleged to have brought an Ibuprofen pill to school violated the 4th Amendment.  As many commentators have noted, the Court is moving to the right, but it could have moved a lot farther.

Why the whimper instead of a bang?  Could it be that members of the Court are influenced by politics?  The most interesting case to me is the strip search case.  Justice Ginsburg, the only woman on the Supreme Court, was open about her concern that her male colleagues were insufficiently attentive to the sensitivities of a 13 year old girl.  Did the fact that  another woman, Sonya Sotomayor, sits in the wings to be confirmed to the Court, have an impact of those colleagues as they mulled over that case?  Did the fact that Sotomayor is a person of color influence the members of the Court considering overruling the landmark Voting Rights Act even as conservative politicians were accusing Sotomayor of being a racist?  We will never know.

Justice Scalia’s Textualism: Brilliant or Perverse?

Written by Robert Justin Lipkin on June 15th, 2009

Justice Scalia insists that the Constitution be understood according to the most reasonable interpretation of the language used at the time to formulate and ratify the document. Yet, he writes:

The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means.  Or that the Supreme Court shall have the authority to disregard statutes by the Congress of the United States on the ground that in its view they do not comport with the Constitution.  It doesn’t say that anywhere.  We made it up.  Now, we made it up very sensibly because what we said was, ‘Look, a Constitution is a law, it’s a sort of super-law . . . and what the law means is the job of the courts.

Anyone have even a modest familiarity with law and logic should be incredulous at this statement. First, if the Constitution nowhere says that the Court is the final authority on constitutional meaning then for a Scalian textualist that should end the matter. Second, Scalia believes that the Court, at least in this case, can just make up constitutional meaning, absent any constitutional text at all, when there is in his view a good reason for doing so. Then how, with intellectually honesty, can he reject the notion of an implied right to privacy, including abortion and the right to decriminalized same-sex intimacy, when there is some textual support for these rights in the “liberty” provision of the Fifth and Fourteenth Amendments? Finally, whether it is exclusively the courts job to say what the law means is arguably something that not even Chief Justice Marshall made up. To insist that that’s the reason for permitting the Court to made up judicial supremacy in circular reasoning in the extreme.

Sotomayor and Race

Written by Rebecca Zietlow on June 4th, 2009

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Suprefinal-4.jpgme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

Sotomayor, Roberts and Empathy

Written by Henry L. Chambers, Jr. on May 27th, 2009

As Bobby has suggested in a few posts already, empathy is an important issue that ought to be properly understood.  Empathy is, as my colleague has noted, the ability to put ontmpphpgnqizv1.jpgeself in someone else’s shoes.  Empathy can come from a mindset or a set of experiences.  Empathy is not necessarily a prelude to rooting for one litigant over another or for deciding a case for or against a particular litigant or set of litigants.  Rather, empathy is a prelude to understanding what effect an interpretation of a law might have on all litigants.  In some circumstances, understanding the effect of an interpretation of law is key to making a proper decision.  I will not get into that issue particularly deeply here other than to note that in cases where the chilling effect of a rule on the exercise of a constitutional right is an issue, empathy may be particularly useful.  Empathy may be useful in determining the existence or magnitude of the chilling effect of a rule and, therefore, whether the particular legal rule at issue is appropriate.  At the very least, a lack of empathy is a negative trait.

Of course, we know that empathy is usually considered a positive trait.  Much of the point of playing up a nominee’s background is about suggesting that even though the nominee is elite, she can put herself in someone else’s shoes.  Chief Justice John Roberts is a good example of this phenomenon.  When he was nominated, much was made of his supposed everyman background.   The fact that he worked in a mill during his summers in college to earn money was touted to suggest that he was just an average guy who could put himself in the shoes of others or had had experiences that would allow him to understand what blue-collar workers understood.  His experiences may have been useful in helping him develop empathy for the less well off given that Roberts had gone to boarding school and his father was a Bethlehem Steel executive.  The point is not whether Roberts can actually empathize with the common man, but that empathy is considered a positive trait and facts that suggested empathy were considered unabashed plusses for Roberts.

Consequently, the discussion of empathy surrounding Judge Sonia Sotomayor has an Alice-in-Wonderland quality.  Judge Sotomayor’s personal history suggests broad experience-based empathy.  Given her racial background, her educational background and her employment history, with stints as a prosecutor, law firm partner, trial judge and appellate judge, she almost certainly understands the law, litigants and average people from many different perspectives.  Of course, it is possible that she yet has no empathy.  Nonetheless, the issue must be whether she has empathy, not whether empathy is good to have.  Some may argue that a suggestion that Judge Sotomayor’s racial background gives her greater empathy with common people than others is unfairly essentialist.  However, the notion that the experiences of a 54-year-old Puerto Rican American from New York are no different than those of a 54-year-old Caucasian American from Indiana (like John Roberts) and will likely not create a different empathy profile is laughable.  We can have a discussion about whether Judge Sotomayor is empathetic and in what ways, but we ought to be far past the discussion of whether empathy is generally a good characteristic for a judge to possess.

Elite Law Schools as a Prerequisite to the Supreme Court

Written by Robert Justin Lipkin on May 19th, 2009

      Should Supreme Court Justices receive their legal education from an elite law schools?  What about the thousands of graduates of non-elite law schools who arguably can bring diversity to the multi-faceted questions of social policy the Supreme court decides?  The real question, in my mind, is this: Is it obviously the case that an ace from an elite law school who is arguably deficient in social skills, judgment, the capacity to emphasize, and other moral virtues, no doubt difficult if not impossible to quantify, is necessarily or even highly likely to be superior as a judge to a pretty good student from a non-elite law school who demonstrates these moral or personal virtues? 

        No question, we don’t always have to choose between these qualities.  But the fact that we immediately jump to embrace to an “excellent record” which almost always means an elite background suggests we’re not very serious in exploring the moral or character virtues non-elite students might have. And these virtues are almost always produced or enhanced by life experiences that often the elite students lack.

        Of course, this discussion is directly related to the jurisprudence of judging. If rules and abstract questions of the nature and interpretation of laws is, for the most part, the extent, of judging, then perhaps elitism is the only reasonable path to pursue. But if these constitute only a part of good judging, then the uncomfortable discussion of what other elements are necessary to good judging, like, empathy, should be a required exercise.  To put the point in general terms, if empathy and other human virtues are required elements in good judging, is it obvious or even plausible that students from elite schools have more empathy because they excel in “objective” criteria?

        Perhaps, in the end an elite education, clerkship, and background as a judge or a highly successful lawyer are considered so important by those who possess these qualities because they control entry into many of these legal institutions and will naturally perpetuate their own power.  This might be cynical, but sometimes we can learn from cynical reactions to entrenched attitudes and practices.

What’s Empathy Got To Do With It?

Written by Robert Justin Lipkin on May 8th, 2009

It’s quite astonishing that President Obama’s mention of empathy as a virtue he seeks in Supreme Court Justices has caused such a cotmpphppmpmrf1.gifmmotion. The reason for the commotion is a commitment to a conventional, however preposterous, jurisprudential paradigm, namely, that law, or rules generally, must be understood simply in terms of the text they’re written in or if going beyond the written word is alright, one must go no further than a narrow extra-constitutional context of “original meanings.” According to this paradigm, the interpreter needs to understand language or an extraordinarily narrow context in which the original language was constructed and nothing more.  How rules might be affect individuals to whom the rules applies is simply out-of-bounds.  Why? Because such inquiries might require the interpreter to generate feelings for these individuals and when feelings are generated all Hell breaks loose.  We’re just not capable of devising principles, standards, and rules and at the same time permitting human emotions to enter into their application. Empathy? Whose empathy? Empathy toward whom? How deep should the empathy go? These are simply intractable problems.  The better approach is not to start down this road at all.

The problem, of course, is that it is only down this road that our humanity can be found. Rather than add empathy to the conventional jurisprudential model of emotion-less rules, we should start out with empathy and with other emotions and formulate the rules to express the import of these emotions. Reversing this order would require Justices to empathize with the parties to a law suit first, and try to determine which rules will best satisfy the real-world needs and feelings of these litigants and of society. This is superior to trying to avoid the feelings and humanity embedded in any important controversy that law is designed to resolve. In conclusion, empathy should be a permanent condition of judging. It should be expressed through the Constitution to apply meaningfully to the lives of Americans.

“Progressive Originalism”

Written by Rebecca Zietlow on March 19th, 2009

The Wall Street Journal had an interesting article this week about the surge of interest in originalism among constitutional scholars and advocates.  These scholars and advocates focus not on the original constitutiojohn-bingham.jpgn, but on the Reconstruction Era, also known as the Second Founding because the Reconstruction Amendments changed our constitution so fundamentally.  I am happy to see the Framers of the Reconstruction constitution getting attention in the mainstream media, especially John Bingham, the original author of Section One of the Fourteenth Amendment and one of the leading constitutional theorists in the Reconstruction Congress.  The article also provides an opportunity to consider the question of originalism as a method of constitutional interpretation, and whether “preogressive originalism” is an oxymoron.  “Originalism” as a method of constitutional interpretation has long been associated with conservative ideology.  Indeed, originalism is a fundamentally conservative method of constitutional interpretation in the classic sense of conservatism.  There are varying schools of originalism, but basically originalists ask judges who are interpreting the constitution to look back at the past and to be bound (to varying extents depending on the scholar or judge) by the meaning of the constitution at the time that it was drafted.

Given the fundamentally conservative nature of originalism, how could any originalist consider him or herself to be “progressive?”  For scholars such as myself who research and write about the Reconstruction Era, the answer is simple.  The members of the Reconstruction Congress were progressive, very progressive, even radical.  They intended the Reconstruction Amendments to alter our system of federalism by transfering the primary responsibility over individual rights from the states to the federal government.  They also had a very broad vision of what these individual rights would be, ranging from the rights to life, liberty and property to all of the fundamental rights.  Finally, and perhaps most importantly, they were the first to give Congress the power to define and protect our individual rights by including congressional enforcement clauses in the Reconstruction Amendments.

Focusing on Reconstruction enables scholars to be originalists and believe that the constitution is a progressive document at the same time.  But this attitude does not answer the fundamental dilemma of constitutional interpretation – whether those interpreting the constitution must always look back to what constitutional provisions meant at the time that they were written, or whether they can consider what those provisions mean in contemporary times.  Conservative originalists like originalism because it cabins the discretion of unaccountable judges when they are interpreting the constitution.  They argue that considering the contemporary meaning of constitutional provisions is an invitation to judges to allow their political and personal views to color their interpretation of the Constitution.

The dilemma of “progressive originalism” is less problematic when we understand that the members of the Reconstruction Congress did not believe that judges were the sole, or even the primary interpreters of the constitution.  Like conservative originalists, members of the Reconstruction Congress were very skeptical of the judicial branch, which they recognized as the author of Dred Scott and an apologist for the Slave Power.  They also believed that members of Congress had a large amount of autonomy to interpret the constitution themselves, and they intended the congressional enforcement clauses to reflect this vision of constitutional interpretation.  When members of Congress interpret the constitution, they need not look back to the meaning of those provisions at the time that they were adopted.  Instead, they may take their political views and contemporary circumstances into account.  That is their job, and that is the task assigned to them by the Reconstruction Congress.  The Framers of the Reconstruction Amendments assumed that those interpreting the broad provisions establishing individual rights in those amendments would take contemporary circumstances into account.  They just didn’t expect the Court to monopolize that interpretation the way that it has in cases such as City of Boerne v. Flores.  Thus, an originalist understanding of the Reconstruction Amendments is progressive, both politically and institutionally.

Unfortunately, the current Supreme Court, comprised primarily of “originalists,” has failed to take an originalist approach to the Fourteenth Amendment.  In Boerne, the Court restricted the Congress’ power to enforce the Fourteenth Amendment in a manner that would have made Reconstruction Framers such as Bingham, James Ashley and Lyman Trumbull roll over in their graves.  Let’s hope the new originalist approach to Reconstruction makes its way to the US Supreme Court, so that the progressive vision of the Reconstruction Framers can be restored – not just in the courts, but also in Congress.