Tuesday, December 31, 2013

Talking Judges

In the always informative blog How Appealing I came across an online article in the Wall Street Journal on what the author considers to be a relatively new phenomenon of judges speaking more freely about their work, their political views and all manner of other interesting subjects.  The article is linked here.

Prominently mentioned is the blog of my friend Judge Richard Kopf, a Nebraska federal judge, entitled Hercules and the Umpire.  I am a frequent commenter on Judge Kopf's blog. (I call him "Rich" and he calls me "Pat" but I'll stick with the more formal for our purposes.)  Judge Kopf and I don't always agree.  He posted a test of political views and he rated in the most liberal 10% (although he was a Bush appointee) and I scored well right of center.  But we have had many fruitful exchanges (at least I like to think of them as fruitful) and I've learned quite a bit.

A much more voluble judge is Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, often considered the father of the law and economics school of jurisprudence.  Whether he deserves that title or not is something I don't wish to debate here.  But Posner is a brilliant generalist who has written fascinating books on everything from the relationship of sexual activity to the law, to the Clinton impeachment to the Bush-Gore cliffhanger.  He also writes in an accessible manner that is happily being emulated by more and more judges.  For an example -- especially if you don't have formal legal training -- read his recent opinion sarcastically dismissing the civil rights suit of a University of Indiana student found growing marijuana in his dorm room; the opinion is linked here.

A perhaps more mundane, but previously unthinkable, example (this also by way of "How Appealing") is that Supreme Court Justice Sonia Sotomayor will count down the new year ball drop in Times Square tonight.

So what gives?  Until fairly recently, judges spoke to the public (actually lawyers and reporters who cover courts) only through their opinions, and that's still the way most of them communicate.  The U.S. Supreme Court is particularly taciturn and unfriendly to press coverage.  It was a huge breakthrough when it agreed to release the audiotapes of the Bush v. Gore oral arguments immediately after the argument was completed, giving the public something approaching real time access.

The fear of most judges is that they'll say something publicly that will come back to bite them in the rear and force them to be disqualified in a later case.  Obviously judges shouldn't and don't blog about pending cases and thus give hints about how they're leaning toward ruling.  But if judges wind up saying something that disqualifies them (forces their "recusal" in more technical terms) in one case out of a thousand, is that such a bad thing?  For a Supreme Court, that's probably a risk that's not worth running, because if a justice of the U.S. Supreme Court is recused there's no way to replace him or her and there's a risk of a 4-4 tie, which leaves the lower court opinion in place but deprives the Supreme Court of the opportunity to write anything with any precedential value.

I don't mean this flippantly, but if Judge Kopf is recused occasionally, who cares?  The case will be assigned to another district judge who will be perfectly capable of handling it.  That trivial price is well worth the benefit of having Judge Kopf's candid views on his job and many other subjects.  "Talking judges" do much to demystify the judicial process.

Of course, this can have real world consequences for the judge.  Judge Posner would have had a realistic chance of being elevated to the U.S. Supreme Court had he not written so many interesting and controversial things.  But he was not willing to set aside his public pursuit of an intellectual vision, and good on him.  Whether you agree with a word he's written or not, all should agree that the world would be a much poorer place if Judge Posner had taken the "safe" route.  And my guess is that it would take 67 Senators to pry "Hercules and the Umpire" out of Judge Kopf's hands.  Actually I take that back -- that would only make his blog more interesting.

Addendum of 1/1/14  Judge Kopf is taking "Hercules and the Umpire" off the air.  It's not the result of any pressure from anyone, it simply was a one-year experiment and he believes he has said all he has to say in that forum.  I'm sad about it, but understand it. -- PJB.


  1. Just to pick out one nit and beat on it for a bit....

    [I]f judges wind up saying something that disqualifies them (forces their "recusal" in more technical terms) in one case out of a thousand, is that such a bad thing [as applied to the Supremes]?

    I'm not convinced a 4-4 tie is any worse than a 5-4 ruling--especially when we have to add up concurring opinion sub-parts (but not only then) in order to get to the 5. In the one case, the lower court ruling is upheld by default, and the appellants didn't really get an opinion. But in the other case, neither litigant(s) got an opinion except in the narrowest legal sense. In both cases the Court is too badly divided for their opinion to matter much in terms of "settling" the question.

    As to depriv[ing] the Supreme Court of the opportunity to write anything with any precedential value, they bring that on themselves without the close split. Way too often, IMNSHO, they duck the Constitutional question screaming at them for an answer in favor of ruling strictly on the narrow legal controversy exactly presented.

    Even if the Court had to reach a little bit in order to reach the Constitutional question, I think that would be a good thing. Answer the matter, don't leave it hanging.

    As to the general thesis of your post, I absolutely agree: the more judges talk to us outside the courtroom, the better. Especially when they're talking about the law, how they approach things, and how courts work in practice. The mechanics are just as important as the theory.

    Eric Hines

  2. Eric, I don't disagree about splintered Supreme Court opinions. I teach a lot of procedural subjects and, for whatever reason, the Court has written a lot of opinions where there is no majority opinion. Of course, there's 5 or more votes for a result, but if the necessary votes are supplied by merely a concurrence in the judgment, then what you are left with is a plurality opinion. In that case, the opinion that is the narrowest grounds for explaining the result controls. The most famous example was Powell's lonely opinion in Bakke which controlled in affirmative action cases for decades. Sometimes, however, it's a pretty good trick to figure out which opinion provides the narrowest grounds.

    The most common grounds for Supreme Court justices recusing themselves (at least I suspect this is the most common reason) is that they have a financial interest in one of the litigants. If that results in a 4-4 split, at least there's a reasonable chance that the same issue will come along in a case without a party that presents that problem. If a justice is recused on any case presenting that issue, then you'd have the possibility of it not getting resolved until there's a chance in Court personnel.

    As for reaching or not constitutional issues, the rule is that the Supreme Court will decide the case on non-constitutional grounds if possible. This rule is followed, except when it's not. The case finding a lack of standing in the challenge to California's proposition 8 was a particularly suspicious one in that regard. I thought that the ballot proponents in that case had a much better case for having standing to take the appeal than did the congressmen in Windsor (the DOMA case). At the very least, it would seem as though the standing issue would have to be decided the same way in each case.

    However, Kennedy, Alito and Sotomayor thought there was standing in both cases while Roberts and Scalia thought there was standing in neither case. So they all get high marks for consistency. However, without any of them writing a word to explain why they switched sides on the standing issue, Ginsburg, Breyer and Kagan voted that there was standing in the DOMA case but then raced over to join Roberts and Scalia to find a lack of standing in the Prop 8 case. They nearly collided with Thomas who was running in the other direction. My hypothesis is that Ginsburg, Breyer and Kagan liked the result in Windsor but didn't like the way the Prop 8 case was going to come out if a majority thought there was standing. My strong hunch is that Kennedy wanted to rest both cases essentially on federalism grounds. He wanted to say that the state definition of marriage to include same-sex marriage in Windsor had to be respected as did California's decision not to allow same-sex marriages.

    However, we will quickly have a case (whether it's from Utah or some other state) where there will undeniably be standing. A lower court will rule the ban on SSM unconstitutional, the state government will defend the ban (unlike the California state government) and there will be a very "live" controversy as to the equal protection issue. Pat.

  3. I'm aware of the Supremes' rule regarding deciding questions before it on non-constitutional grounds if possible. Even were the rule consistently followed though, I disagree with it (which disagreement and a couple of bucks will get you an adequate cup of coffee at a Starbucks, I know). With the constitutional question before them, they ought not duck it; it's just going to come up again, and again, and again, and in the meantime, at least one side of the controversy isn't getting justice, or even a "settled" question.

    I see a great deal of consistency in Ginsburg's, Breyer's, [note that Oxford comma...) and Sotomayor's bouncing around on standing. The question before them was not standing but their perceived need to protect SSM--a failure of their judgeship; they'd reached their opinion before hearing the cases--so in the case they expected to lose, the successfully denied the right to bring it, and in the case they expected to win, they allowed it in. I don't have a good excuse for Thomas, though; he usually knows better.

    I agree with Kennedy's wanting to settle SSM on Federalism grounds, but from the opposite side: the Federalism is a conglomeration of States, and this is a matter that should be settled at the State level; the Feds should butt out.

    Withal, though, even though the Supremes might rule decisively on a matter, it's still not settled law. My beef here is rather internally inconsistent: there's a great deal of usefulness to having a law question be settled. On the other hand, it takes an inordinate amount of time and/or cost for the Supremes to recognize an error and correct it. It took a war to overturn Dred Scott and 80 years of discrimination to get Plessy reversed, for instance.

    Eric Hines

    1. Eric, I agree what was going on with the shifting views on standing (though Sotomayor did not shift -- it was Kagan, Breyer and Ginsburg going one way and Thomas the other, though Thomas's is a little easier for me to understand because I thought the Prop 8 case was slightly easier on the standing). As for SSM, I think it's a political issue. As with many contentious social issues (e.g., abortion) the democratic process will eventually sort it out. The Supreme Court is so selective about when it applies "the rule" about not reaching constitutional issues that it probably should stop pretending there is such a rule. As for over-ruling decisions, sometimes the Supreme Court has acted pretty quickly. Bowers v. Hardwick (ruling sodomy laws constitutional) only lasted about 20 years. The Court flipped positions on partial birth abortion in a very short time. It's hard to read Scalia's opinion in Windsor and avoid the conclusion that he's absolutely right -- the Supreme Court has an utterly inflated view of itself as the hub of government through which contentious social issues pass, rather than limiting itself to exercising "the judicial power.

    2. Dean Borchers, I must respectfully disagree. I don't know how you can make SSM a "political" issue, as fundamental rights were protected by the Bill of Rights with the expressed intention of ensuring that they would never be subject to the tyrannical whim of majorities. Given that the right to marry was deemed "fundamental" [Loving], that in a secular Republic, "marriage" is nothing more than a contract, with default terms written by the State, and that the State must be able to show a compelling interest in impairing SS couples' right to contract, Scalia was absolutely right in his Lawrence dissent: the game was over.

      Bowers was wrongly decided. (In an odd way, I had a hand in taking out Bowers, who was having an adulterous affair, also illegal under GA law.) The problem, of course, is judges substituting their own personal views for defensible constitutional interpretation. In disputes like these, judges are mere proxies for the Party elevating them to the bench. To call our band of self-appointed Platonic Guardians "judges" does violence to the word.

      Abortion, same-sex marriage, euthanasia, and pretty much everything that usually gets our homegrown Taliban's panties in a bunch is, at least in theory, protected by the Constitution. This is what you would expect in a Christian nation, given that Jesus taught that in everything, you are to "do to others what you would have them do to you, for this sums up the Law and the Prophets," Matt. 7:12, and Paul declared that "all things are lawful, but not all things are profitable." 1 Cor. 10:23. Liberty, if it is to mean anything, is the right to do what you might disapprove of.

      As an actual originalist, what I despise about Scalia is that he is about as faithful to his originalism as Tiger was to ex-wife Elin. He bastardizes his principles, using them as little more than a transparent pretext for imposing his Catholic social agenda; he and Thomas are the Pope's votes on the Court.

      Yeah, this is SCOTUS's job, because the courts are the only forum an individual has for the protection of his or her rights. Scalia is wrong, as usual.

    3. Dissenter, every society draws lines on marriage. Consanguinity, age, number of spouses -- what have you. Now someone could in perfectly good faith believe that an unrelated same-sex couple should be able to wed, but that an uncle and a niece should not be able to marry, as in the famous New York case of In re May's Estate. I believe that the democratic process will ultimately do a better job of deciding where the lines should be drawn that attempting to deduce them from the Constitution. Loving v. Virginia is distinguishable because the race-based classification there was long recognized as an invidious one. If the Supreme Court decides that drawing lines based on sexual orientation is suspect (or at least quasi-suspect) then what will follow from that is a constitutional right to SSM. I don't agree with your major premise that judges are simply politicians in robes, though I'm certainly not willing to argue that political orientation has no predictive power in difficult cases. I don't know whether you've ever seen the New Yorker article on the backstory on Lawrence v. Texas. It's fascinating, touching and sad all at the same time.

  4. I agree and disagree.

    Even if we assume, arguendo, that the democratic process were able to do a better job, our pesky Constitution gets in the way. In Loving, the Court held that marriage was a "fundamental right" and as such, the State can only impair it if it can show a compelling interest in so doing. From the initial SSM cases on down, defenders of traditional marriage lost every case they tried because they could not conjure up a state interest that was not risible on its face. It ought not be a political issue, as a fair reading of the law we have provides one pellucid answer.

    There is nothing stopping opponents of SSM (or therapeutic abortion) from passing a constitutional amendment, apart from not enough people agreeing with them. We are therefore left with the Constitution we have, as opposed to the one some (and even a majority) might want.

    Can the State show a compelling interest in preventing first cousins from marrying? Absolutely. Such couplings tend to produce mentally feeble offspring, which tend to produce wards of the State, and the federal government has an obvious interest in forbidding sham marriages as a way to evade the estate tax.

    Could the State prevent eight-year-old A'isha from marrying Mohammed? Yes, as the State has a compelling interest in protecting children from the ramifications of entering into a contract. Could a State raise the age of consent for entering into a marriage to 30 or 35? No. Once a child reaches the age of majority, the rationale evaporates. The rule works.

    Number of spouses? That's a tough call, which is made tougher by the Obamacare contraceptive lawsuits. Both Mormons and Muslims can contend that laws against polygamy impair their right to free exercise, and a Utah district court has laid down a foundation for these challenges. I don't even know how you thread that needle, if the Hobby Lobby plaintiffs succeed. But the rule of law, properly applied, provides one clear answer.

    In theory, there should be one and only one right answer to ANY question of law. "It is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.” 1 Coke, Institutes of the Laws of England 51 (1642). "Tyranny" is "the exercise of power beyond right." John Locke, Second Treatise of Government § 199 (1695), and the discretion of the judge "is the first engine of tyranny." 4 Gibbon, The History of the Decline and Fall of the Roman Empire 153 (6th Am. Ed. 1830) (1780). When your best tool for prediction is the identity of the Party elevating the judge to the bench, the system of "law" beset by this disability loses all credibility.

    Whereas Thomas Paine proudly proclaimed “that in America THE LAW IS KING,” Thomas Paine, Common Sense 36 (P. Eckler Co. 1918) (1776) (emphasis in original), Judge Posner admits that the law’s once-vast kingdom “has shrunk and greyed to the point where today it is largely limited to routine cases.” Richard Posner, How Judges Think 1 (Harv. U. Press 2008). What were once judges are now Platonic Guardians, and what was once the rule of law has devolved to a rule by men. This, ironically, is why it is a political question.