Category: Supreme Court


The Best Post about Sotomayor That You’ll Read This Week

Is by Paul Horwitz.  Seriously.  Best part?

“[T]here is very little point in having very much conversation about Sotomayor at all.  The more we talk about her, the less likely it is that we will actually be talking about her at all — unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct.  The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I’ve already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights or not, which party should take political primacy, and so on.”

Would write more, but am listening to people chat during a background briefing about Sotomayor for bloggers. And the band plays on.


Sotomayor is the Choice

The AP is reporting the Judge Sotomayor is the choice to replace Justice Souter.  As readers of this blog might guess, I am thrilled by the news.  There will be plenty to say about this over the next few months.


Still Smokin’? Maybe So, Maybe Not: Supreme Court, Medical Marijuana, and California

marijuana031904_fig1_2So medical marijuana is safe or is it? The Huffington post declared “Supreme Court Hands Medical Marijuana Major Victory,” because the Supreme Court refused to hear a case from San Diego County “arguing that the federal ban on marijuana trumps the state law, meaning they are not required to follow the state law.” Yet, almost simultaneously, Judge Marilyn Patel ruled against alleged medical marijuana grower, Charles Lepp, and sentences him to ten years. Judge Patel’s ruling seems to be based on facts that belie the medical marijuana defense and a religion-based defense. Still, she also said “I have to say I think that amount of time is excessive. But it is not up to me to legislate, it is up to Congress.” Apparently, Judge Patel indicated that she might reconsider the ruling if sentencing laws change.

So here’s a possible safety tip: even if the state law is not pre-empted by federal law, one may want to make sure one is in compliance with the state law. In addition, if it is true that supporters of Lepp yelled, “She’s a criminal! She’s a drug war criminal!” about Judge Patel and “screamed” at Assistant U.S. Attorney David Hall, that his prosecution was tantamount to a war crime so much so that he would be charged, “just like Cheney,” it may be time for the legalize marijuana movement to find some other spokespersons. Although I believe that some or many believe these views, I am not so sure that this tactic wins any converts. Indeed, it probably distances those who may be sympathetic.

Image: cannabis indoor growing
Source: Wikicommons; and DEA
License: Public Domain


Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution

     In an earlier post, I noted that two recent books had important things to say relevant to the ethics of government lawyers. That first post reviewed one of those books. This post reviews the second, H. Jefferson Powell’s beautifully written and spiritually uplifting new book, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008). Despite what the book’s title might suggest,  Powell’s lessons concern the ethics that should guide all constitutional decisionmakers, not only government lawyers. Indeed, his lessons explicitly apply to such lawyers as well, including a chapter-length illustration. Here I simply summarize his ethical theory, leaving it to the reader to imagine applications.

     I note one preliminary point: while much constitutional law scholarship is depressing, either foolishly pretending law to be a mechanical enterprise divorced from politics or a cynical one masking politics,  Jeff Powell offers a third, happier way ignored by fools and cynics alike: that of virtue. Those embracing the first two approaches may see Powell’s way as hopelessly idealistic, but Powell himself sees it as highly realistic, and his extended examples, which I do not have space to recount here, strongly support the pragmatic viability of his suggestions. Read More


What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice

heart1aThere has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.”  He writes:

What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30” side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.

Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.

In The Concept of Law, H.L.A. Hart famously observed:

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Quarterbacks and Justices

In December, Malcolm Gladwell wrote a piece in The New Yorker about how difficult it is for NFL scouts to figure out which college quarterbacks will do well in the pros.  The success rate of these predictions is poor even though there is plenty of information available on draft prospects — game tape, interviews, physical tests, and so on.  Why is this the case?  Partly because the NFL is so much more challenging than college football.  And partly because the skills that make someone a great NFL quarterback are intangible and thus cannot be easily measured.  Few thought that Tom Brady would be a star when he was drafted. Everyone thought Matt Leinhart would be a star when he was drafted. How is that working out?

A similar dynamic applies to evaluating potential Supreme Court Justices.  One thing that I find astonishing about the debate on the candidates for Justice Souter’s seat is how sure some people are that they know who will be a “liberal Scalia” and who will not.  Indeed, much of the media coverage implies that the President’s choice comes down to picking a transformative nominee or “playing it safe” and taking someone who just fills some demographic slot.  This analysis rests on several false assumptions.

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Why Not A Supreme Empiricist?

The 14th Amendment does not (yet?) enact Mr. Herbert Spencer's Social Statics.

The 14th Amendment does not (yet?) enact Mr. Herbert Spencer's Social Statics.

In the last post, I suggested that  we shouldn’t be selecting for judicial smartness, at least standing alone.  Here, I’d like to add my two cents to the pile of unsolicited, and likely unused, advice for the Obama vetting team.  The Administration should give some thought to picking a Justice who has prior background working with statistics, data collection, and more general empirical methods.

The footnote 17 debacle is, of course, a recent and salient example of how the Court can go wrong when evaluating empirical work:

“Cornell law professor Jeffrey Rachlinski told the Times that [Ted]  Eisenberg’s study shows “punitive damages are pretty orderly,” yet Souter did not seem to think any studies had proven that point.

The Times asked Eisenberg for his reaction and summarized his response this way: “Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: ‘I believe the court went seriously astray’ in concluding that his work supported a reduced award.”

Statistical problems before the Court aren’t new — Brown & McClesky both come to mind – but it is likely that the Court will face increasingly sophisticated empirical methods  in briefs over the next generation. Not only has the Supreme Court bar gotten much more sophisticated, but so have the underlying methods in empirical legal scholarship. As methods grow more sophisticated, it becomes harder for judges to play referees, since the errors (if any) in the parties’ positions are more subtle.  A Justice who could be an intelligent consumer of empirical work, rather than a credulous user, would be a huge bonus.

That’s not the same as saying that a Ph.D. in stats, or political science, ought to be a credential.  Lawyers who have litigated complicated employment, antitrust, or securities cases have to deal with statistics experts and are well exposed to the kinds of questions that need to be asked about their analyses.  To a lesser extent, so are judges who have sat on such  large commercial cases.  The point is that at least some exposure in statistics and social science techniques is quickly becoming part of a well-rounded legal education. It should also be part of what we look for in a Justice.

[Update: Michael Heise has more.]


Smart. Smart! Smart?

Oliver Wendell Holmes

Oliver Wendell Holmes

One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue.  Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.

It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance.  Rob Kar, in her defense, writes:

“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.”

I’m not sure that Prof. Kar is entirely serious here, but his post was picked up by TPM in its influential roundup, which noted the spreading of the idea that Sotomayor was “too temperamental–and not intelligent enough–” to be a Justice.

There’s plenty wrong with this mindset. Not least, as Bill Stuntz points out, “[intellectual] horsepower alone isn’t enough to produce a lasting impact on the law.” Vivid writing matters, as does judgment, and an appropriate sense of judicial role and temperment.  And, since the Justices are the highest profile lawyers in the country, so does personal history and demographics: lawyers should have professional models, to guide them in making hard decisions in the absence of judicial oversight.

As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest.  Or at least someone who understands that smartness correlates with wisdom about as well as law does to justice.


The Case for Sotomayor

I was not planning to say anything about the candidates to replace Justice Souter. Nevertheless, I feel compelled to do so after reading Jeffrey Rosen’s piece in the New Republic entitled “The Case Against Sotomayor.” (I’m sorry I can’t link to it here, but my home computer won’t allow me to do that for some reason.) Rosen’s negative characterization of the Judge, which is based on conversations with various unnamed lawyers, is inaccurate.

I have known the Judge for thirteen years. After my first year in law school, I was an intern in her chambers when she was a District Court judge. A few years after that, I was a clerk on the Second Circuit, where my judge sat with Judge Sotomayor on many panels and I observed oral arguments in which she was involved. And since then I have visited and spoken with her frequently on a range of issues. Thus, I feel like I have a special authority to talk about her qualifications.

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Justice Scalia’s Dossier: Joel Reidenberg Responds

Reidenberg-Joel.jpgProfessor Joel Reidenberg has asked me to post the following response to the story regarding his Justice Scalia dossier class assignment:

There seems to be significant misinformation circulating in the blogosphere relating to the nature of my class exercise, its instructional use, and how the exercise became public.

The exercise was part of my Information Privacy Law class this semester. The course, in exploring the origins and scope of privacy law, examined the ways technology can both invade and protect personal information and examined how the law related to those technologies. We used a traditional case book, Solove & Schwartz, and I supplemented the book with two concurrent exercises that are treated as course materials: 1) each week the students posted links on the course discussion board to news stories related to privacy issues so that we could discuss them in class and make connections to the casebook reading assignments; and, 2) throughout the semester, the students posted on a class discussion board links to information found on the web related to the class research exercise.

The research exercise is designed for class discussion to illustrate law and policy issues associated with readily available information, contextual use, social norms and the scope of legal protection. The exercise seeks to provide a first-hand experience for discussions of the boundary between public and private information, the loss of practical obscurity and the capacity of law to respond to these issues. For the exercise last year, I framed the research as a challenge to the class to find a specific piece of esoteric information about me. The class was surprised at how much information could be found readily. This year, I planned for the course to focus more attention on the blurring of public and private information and decided to frame the research exercise as a challenge to find information about a public figure. Very early in the semester, a news report about Justice Scalia’s speech was posted on the class discussion board as one of the weekly news items. He was reported to have made the comment that treating much of the information on the web as private was “silly.”

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