Saturday, May 30, 2009

The Dance Troupe that Beat Susan Boyle:

Well-deserved, I think. (Click on number 3 on the playlist.)

UPDATE: BTW, Boyle sang the same song she sang on her first appearance on Britain's Got Talent. I understand the tremendous pressure she was under, but I suspect she would have been much more likely to win if she had shown the audience something new.


"Bastiat Prize for Writers Who Defend the Institutions of the Free Society"

-- including the new $3,000 Online Journalism prize -- is now open. Full details at; the deadline for submissions is June 30. "Started in 2002, the Bastiat Prize was inspired by 19th-century French philosopher Frédéric Bastiat’s compelling defence of liberty and eloquent explanations of complex economic issues. Judges have included former UK Chancellor Lord Lawson, Pulitzer prize-winning author Anne Applebaum, former Bastiat Prize winner and best-selling author Amity Shlaes, Lady Thatcher and Nobel laureates James Buchanan and the late Milton Friedman."

"Last year’s competition" -- which didn't include an Online Journalism category -- "attracted over 250 entrants from more than 50 countries. The winner was Barton Hinkle, deputy op-ed editor and columnist for the Richmond Times-Dispatch. Second and third prizes went to Swaminathan Aiyar, Consulting Editor of the Economic Times and Times of India, and Fraser Nelson, Political Editor of The Spectator. Previous winners include Amit Varma of Mint (India), Robert Guest of The Economist and Brian Carney of The Wall Street Journal."


Recommendations for Good Blogging Software + Hosting Services?

I've much appreciated PowerBlogs, which we've been using for several years, but I'm afraid that Chris Lansdown is shutting PowerBlogs down, and we'll have to move to some other blogging software and some other hosting company. Any suggestions, especially as to blogging software? We're looking for reliability, easy of use, and a good feature set. We'd naturally prefer if it wasn't very expensive, but if it costs some money to do this right, we'll likely be happy to spend it.

If you have recommendations, positive, negative, or (especially) comparative, please post them, or e-mail me at volokh at Many thanks!


Comment Quality: Reading the VC comment threads post-Sotomayor, it's interesting how many of them are quickly descending into name-calling and over-the-top accusations from both sides. Granted, there is always a part of that with open blog comments: Some folks post Internet comments to enilghten, others to vent. And there are some topics, such as the OLC torture memos, that always seem to bring out hostility on both sides. But it's interesting — and to me, troubling — how the nomination, like the '08 election, is bringing so much of that to the surface so quickly so often.

  UPDATE: This comment made me laugh out loud, as it was written, I think, without irony:
  It's really simple - Obamabots view every critisism of their Messiah and his chosen Apostles (in this case Sonia Sotomayor) as blasphemous acts. Therefore, people who make such critisism are quickly labeled racists, nativists, wingnuts etc.
  This was once an enjoyable conservative/libertarian blog. However, nowadays it has been swamped by Obama's Sturmabteilung Internet troops. I really don't understand what's the pleasure of regularly following blogs from the other side of political spectrum. Go read DailyKomunist, please
I hope one of our more liberal readers will hurry up and match that with a similarly idiotic comment from the left, just to balance things out.

What Do Steve Forbes and I Have In Common?

Unfortunately for me and fortunately for him, it is not the size of our bank accounts. But as Anne Neal reports, we both did get reprimanded by our respective boards of trustees for speech crimes, Forbes for criticizing Princeton's hiring of Peter Singer while he was serving on the board there. She also reports that University of California Regent John Moores got in trouble for asking scandalous questions about whether UC was violating state law in its admissions practices.

Friday, May 29, 2009

Property Rights Cases are Not "Pro-Business" vs. "Anti-Business" Cases:

One of my longstanding peeves is that property rights and economic regulation cases are often depicted as pitting "pro-business" interests against an "anti-business" or pro-consumer camp. Rarely does this frame accurately reflect the real issues at stake.

This recent New York Times article discussing Sonia Sotomayor's rulings in property rights and regulatory cases is just one of many examples of this fallacy. The article analyzes the decisions from the standpoint of trying to determine whether she falls into "a pro- or anti-business camp." In the process, author John Schwartz cites Sotomayor's ruling against property rights in the Didden case as an example of an anti-business ruling, while claiming that her pro-property rights decision in Krimstock v. Kelly cuts the other way.

The pro-business vs. anti-business approach to these cases makes little sense. In Didden, there were business interests on both sides. As I explained in this post, one businessman - politically connected developer Gregory Wasser - used the the threat of condemnation to try to force two other businessmen to pay him $800,000 or give him a 50% stake in their business. When they refused, the local government used the power of eminent domain to transfer their land to Wasser, as the latter demanded. Judge Sotomayor and her Second Circuit panel ruled that this taking was for a permissible "public use" under the Takings Clause of the Fifth Amendment. Since business interests were arrayed on both sides, describing the decision as "pro-business" or "anti-business" is misleading. Rather, the decision involved a clash between property rights and the power of government, which is sometimes exercised on behalf of locally powerful business interests such as Wasser against politically weaker landowners (some of whom are businesses themselves).

The pro-business vs. anti-business frame is even less relevant to Krimstock than Didden. Sotomayor's opinion in Krimstock struck down a New York City law that allowed the government to seize cars belonging to certain criminal defendants and hold them for years at a time without giving the owners any opportunity whatsoever to contest the seizures. I don't see any way in which Sotomayor's decision was somehow "pro-business," except in the trivial sense that some of the car owners might also have been businesspeople. Rather, this case too pitted the power of government against property owners, many of whom might have been poor or politically weak.

More generally, court decisions protecting property rights against government should not be viewed as "pro-business" because the Didden pattern of local government using eminent domain to benefit politically influential business interests is actually quite common. One of the most notorious examples is the 1981 Poletown case, where the City of Detroit used eminent domain to expel some 4000 people from their homes so that the land could be transferred to General Motors. The Supreme Court's famous decision in Kelo v. City of New London is another example, since those condemnations were in large part instigated by the powerful Pfizer Corporation, which expected to derive profit from them. For reasons I discuss in this article, eminent domain is often used to transfer to take the property of the politically weak for the benefit of the powerful (often including influential businesses).

But it would also be a mistake to view pro-property rights decisions as "anti-business." After all, many of the victimized property owners are themselves businesspeople, as was true in Didden, Poletown, Kelo, and many other cases. Small businesses are among the most common targets of Kelo-style "economic development" takings.

What is true for property rights cases is also true for many regulatory decisions, which also often pit different business interests against each other rather than an undifferentiated business class interest against other sectors of society.

I do not mean to be too critical of theTimes piece. To the contrary, I think Schwartz should be commended for making a genuine effort to consult experts from across the political spectrum; and of course I'm grateful that he cited the writings of two Volokh Conspirators, including myself. I also think he did a generally good job of summarizing a large number of cases in a short space. Unfortunately, the article exemplifies the ways in which even a skilled and fair reporter can fall into the error of using this misleading framework for analyzing property rights decisions.

UPDATE: I would like to briefly note two other minor, but unfortunate errors in the Times article. First, the article describes Richard Epstein, perhaps the leading libertarian legal scholar in the country, as a "conservative." Confusing libertarians with conservatives is a common mistake, but still a significant one, especially in an era of Bush-style "big government" conservatism when libertarians and many conservatives often diverge on the kinds of economic issues the article focuses on. Second, the author writes that Sotomayor's Didden ruling "followed" the Supreme Court's decision in Kelo. This is true to an extent, but it ignores the fact that Didden went even farther than Kelo in undermining property rights by allowing government to condemn property even in a situation where the stated rationale for the taking was a blatant "pretext" for the true purpose of benefiting a private party, a scenario the Kelo majority described as unconstitutional. It is possible, however, that Schwartz merely meant to say that Didden "followed" Kelo in the sense that it came later chronologically.


Important New Translation of the Iliad:

Professor Christian Kopff of CU-Boulder recently wrote the introduction to a new translation of the Iliad; I interviewed him about why this new version is important. 33 minutes.


Another Critic of Judge Sotomayor's "Wise Latina" Sentence:

President Obama. Greg Sargent (The Plum Line) reports:

In an interview to air on NBC later tonight, Obama concedes she may have misspoke but that her larger meaning was clear and uncontroversial.

According to the NBC press release, Obama says:

“I’m sure she would have restated it. But if you look in the entire sweep of the essay that she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through — that will make her a good judge.”

For my thinking on the quote, see this item on


My LA Times Debate with Erwin Chemerinsky, Part 3:

The third and final part of my Los Angeles Times debate with UC Irvine Law School Dean Erwin Chemerinsky is now available here.

In this installment, we considered the question of whether "Obama's runaway victory last November give him a strong mandate to structure the Supreme Court as he likes." Since we actually don't disagree that much over the "mandate" issue, I used part of my allotted space to try to sum up the key points of dispute from our earlier exchanges over Sotomayor and judicial empathy.

I am grateful to the Times for organizing this discussion and to Dean Chemerinsky for his insightful contributions to it.

The entire series of posts is available here.


"Professor X Says":

My "arguably" post reminded me of a related practice — saying "Professor X says, 'This law is unconstitutional [or whatever X is saying]'" when you agree with Professor X, but (1) without expressly saying that you agree, and (2) without explaining why you agree with Professor X and not Professor Y (and there usually is a Professor Y who says the contrary).

If you want to endorse Professor X's view, be clear and candid about it; say "As Professor X says, 'This law is unconstitutional'" or perhaps just quote the assertion, "'This law is unconstitutional,'" and cite X in the footnote. That will make clear to the reader that you are embracing that assertion, rather than leaving a question in the reader's mind.

Putting things that way will also likely make it clear to you that you are now asserting something that you need to defend. And it should lead you to ask yourself, "Will the reader agree with the quoted material, and, if not, what counterarguments will the reader mentally make?" Unless Professor X is a very respected authority indeed, simply X's name won't persuade the reader. Either the quote must itself contain a persuasive and relatively complete argument, or you have to explain why the quote is correct.

This should be obvious, but I've been struck by how often legal writers (especially students) miss it.

UPDATE: Just to clarify -- I'm referring here to the use of the phrase in legal argument, where the author is expected to defend his assertions in some detail. Naturally, in lots of contexts (e.g., casual conversation), the rules are entirely different.

Related Posts (on one page):

  1. "Professor X Says":
  2. "Arguably" Instead of Argument:

Obama's Statements on Empathy and the Doctrinally Relevant vs. Doctrinally Irrelevant Distinction: There has to be a natural limit on how many posts on empathy a single blog can host -- or at least I hope so -- but I wanted to elaborate on an interesting issue raised in the comment threads on the difference between what I have called "doctrinally relevant empathy" and "doctrinally irrelevant empathy." A number of readers claim that President Obama is referring to empathy only in the doctrinally relevant sense. According to this view, all Obama is saying is that he thinks judges should have a worldiness and understanding that allows them to apply legal doctrine accurately. Everyone really agrees with that point, the thinking goes, as doctrinally relevant empathy is not controversial. As a result, the entire debate over empathy is basically bogus, just a right-wing straw man.

  I wanted to focus the discussion a bit by pointing to what I take to be the two key descriptions of empathy that have led Obama's critics to believe that he is referring to something other than doctrinally relevant empathy. The first was what I believe is Obama's first extended discussion of the point, when he announced his vote against John Roberts in 2005. As he expressed it then, Obama spoke of empathy as the quality that kicks in when doctrine runs out:
  [W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, . . . what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
  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 difficult cases, the critical ingredient is supplied by what is in the judge's heart.
  It seems to me that Obama is not merely speaking of doctrinally relevant empathy here. He's not making a formalist claim that an accurate application of the law requires empathy to reach correct results. He seems to be speaking of empathy as something outside doctrine -- a quality that kicks in and can guide decisionmaking after doctrine has been exhausted and has not yielded an answer.

  That point is echoed in his definition of empathy when he announced Justice Souter's retirement a few weeks ago: he described empathy as the quality of "understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes." This doesn't sound to me like he is referrfing to legally relevant empathy; I think it is at the very least nonobvious that arriving at a "just outcome" through identifying with a person's "hopes" is doctrinally relevant.

  Anyway, I don't think the meaning of "empathy" is really such a vital issue. Like the John Roberts baseball analogy, it seems like a phrase that captures the public attention for its (superficial) simplicity rather than the depth of its insight. But I did want to point out the passages that have led critics to focus on the issue. While of course different people can look at language and reach different conclusions, I think there is indeed some basis for thinking, just based on President Obama's words, that Obama has something else in mind.

"Arguably" Instead of Argument:

I see this often in legal arguments, especially (but not only) in student work -- the writer says something like "This option would arguably violate the right to jury trial," and feels that this sufficiently distances him from the assertion that he doesn't actually need to defend it.

This sort of usage is, and should be, quite unpersuasive. If you want to argue that the option would violate the right to jury trial, argue it. But if you don't think you have enough of an argument to support the position, then don't just assert that the position is "arguably" true.

Of course, sometimes a substantial possibility of some legal outcome might be enough to counsel against risking that outcome: For instance, a prosecutor might shy away from a (relatively low-benefit) litigation tactic simply because that tactic could cause the eventual conviction to be reversed, even if that result isn't certain or even highly likely. But there too "arguably" isn't enough -- you have to argue why there is such a material risk, and why this risk is reason to reject the option.

So the word "arguably" always puts on me guard that there might be an assertion being made without any supporting argument. And most of the time, that's precisely what's going on.

Related Posts (on one page):

  1. "Professor X Says":
  2. "Arguably" Instead of Argument:

Prof. Michael Stokes Paulsen's Testimony in Defense of the So-Called "Torture Memos," and Their Authors:

is here; Prof. Paulsen's forthcoming Yale Law Journal piece, which touches on the constitutional presidential power question, is here. I don't know enough about the separation of powers questions to have an informed opinion, but Paulsen is a serious and thoughtful scholar, and his views struck me as worth passing along. For other views from the same hearing, see Prof. Philip Zelikow's testimony, Prof. David Luban's testimony (which on my quick glance seems to be the one most at odds with Prof. Paulsen's analysis), Prof. Robert Turner's testimony, and Prof. Jeffrey F. Addicott's testimony, and Ali Soufan's testimony.

UPDATE: The comment thread was largely occupied with largely substance-free sniping (plus criticism of the sniping); I deleted most of the comments, and tried to leave the more substantive ones, hoping that this might get it back on the right track.


Sotomayor May be Wrong About Race, but She is No Racist:

Legal commentator Stuart Taylor has a good column criticizing various conservative pundits - including Rush Limbaugh and Newt Gingrich - who accuse Supreme Court nominee Sonia Sotomayor of being a racist.

Both Taylor and I have been very critical of Judge Sotomayor's 2001 speech where she claimed that "a wise Latina" judge will generally make better decisions than a white male one, and argued that judges can often legitimately base decisions in part on their racial or ethnic identity. I believe her position is wrong. But it isn't racist. Sotomayor did not suggest that whites are an inferior race relative to some other group or that they should be denied equal rights or relegated to second-class citizenship. Conservatives often rightly denounce overblown accusations of racism advanced by leftists. For that reason, among others, it is important that they avoid committing the same sin themselves.

And while we are on this sorry subject, Limbaugh also did his reputation no favors when he said that "Obama is the greatest living example of a reverse racist" in the same statement (quoted by Taylor) where he accused Sotomayor of racism. I think Obama is wrong about a great many things. But he pretty clearly isn't a "reverse racist," much less "the greatest living example" of such.

UPDATE: I have taken the very unusual step (for me) of closing down comments on this post since I think that the thread has gone well past the point of diminishing returns, and some of the comments exceed even the very broad limits of what I consider to be permissible civility.

UPDATE #2: The original version of this post incorrectly identified Gingrich, rather than Limbaugh, as the one who called Obama "the greatest living example of a reverse racist." I apologize for the error, which has now been corrected.


Guns in Parks: The Hoplophobes’ Travel Guide to the United States:

Into today's issue of The New Ledger, I analyze some of the reader comments from last week's reader comments to a collection of pro/con essays in the on-line New York Times, regarding guns in National Parks.


Does Biden help Obama? Lefts Says Yes; Right Says No:

This week's National Journal poll of political bloggers asked: "What is Vice President Biden's impact on the Obama administration?" Of Left-leaning bloggers, 81% said that he is helping "a lot" or "a little." On the Right, nobody thought he was helping a lot, and 23% thought he was helping a little. Fifty-four percent said "Hurts a little."

I voted with the Right majority, and wrote: "Was supposed to be a wise expert in foreign policy. Now rather comical. In the last six months, has greatly underperformed Sarah Palin."

The results page also include the blogger poll on Sonia Sotomayor, which was published earlier this week, and discussed previously on the VC.


The Chrysler Conspiracy:

There's a lot of buzz on the net about how specific Chrysler dealerships were selected for closure as part of the auto company's restructuring. On the surface, it appears the shuttered dealerships are disproportionately owned by donors to Republican candidates while hardly any dealerships owned by Democratic donors were placed on the closure list. Even those quite skeptical of the story, such as Megan McArdle, think the pattern "doesn't look good."

Is it possible the Obama Administration is using the Chrysler restructuring for political gain? Of course it's possible; give politicians of either party the ability to reward friends and punish enemies and they'll often take advantage. It's not just the "Chicago Way," it's the way of politics. But in this case, it seems like there's much more smoke than fire.

Sean Parnell of the Center for Competitive Politics, who is well aware that public disclosure of campaign contributions can bring political repercussions, thinks the charges in this case "are almost certainly not true." He writes:

While things may have changed somewhat since the days I was raising money for a Republican member of Congress, auto dealers are almost overwhelmingly Republican. Pretty much by definition, if you're going to be closing down auto dealerships, you're going to be closing down an awful lot of Republican-owned auto dealerships. A quick look at the giving by the National Auto Dealers Association PAC consistently shows contributions going to Republican candidates by about a 2 to 1 margin, and nearly 3 to 1 in one recent cycle.

More telling, however, is the fate of minority-owned auto dealers under the closings. If the Obama administration were targeting political opponents for closure, it would seem likely that political allies, or at least those the Obama administration presumably favors, would have a lower closure rate than others.

It's speculation on my part, but I'm going to go out on a limb here and say that minority-owned dealerships would come out better-than-expected if the Obama administration were using auto dealership closures as a tool of political revenge.

So what do the numbers show? From an article in the Seattle Medium:

Of the 789 Chrysler dealers who were notified that their contracts will not be renewed, 38 are minority owned...

At the end of April, there were 154 minority dealers in Chrysler's 3,181 total U.S. dealer body network . . .

According to my trusty calculator, before closings 4.84% of Chrysler's dealers were minority owned. What percentage of auto dealers receiving closure notices are minority owned? 4.82%

At this point, the case for Obama's use of campaign disclosure reports to compile an "enemies list" for use in the closure of auto dealerships pretty much falls apart, unless someone wants to really make a big deal of the two one-hundredths of a percent where minority-owned dealerships come out ahead.

I would also echo McArdle's sentiment that if there were any political funny-business in the Chrysler closings (and that's a big "if" at this point), it's far more likely that someone in the Administration intervened to protect an important Democratic contributor here or there than that the entire process was used to slam Republican dealers across-the-board. In any event, it seems to me there is far less to this story than meets the eye.


How Green Is Sotomayor?

What can we say about Judge Sotomayor's approach to environmental matters? Here are some assessments from Richard Frank (Legal Planet) and Kate Sheppard (Grist).


Man Arrested for Calling 911 Over Botched McDonald's Order: An Oregon man named Raibin Raof Osman was arrested and charged with a misdmeanor for calling 911 to get the police to resolve a dispute over a botched fast food order. Osman ordered food, took it home, and then concluded when he was home that the order was wrong (including missing some orange juice, apparently). So he went back to the McDonald's with his receipt, but the manager said that the order was given correctly. Osman refused to leave without his orange juice, and the manager threatened to call the police. Osman said to go ahead. When the police didn't arrive, Osman called 911 and asked for police assistance. Osman apparently did not misrepresent his identity or describe his situation inaccurately: He just thought it was ok to use 911 to get the police to come and get them to resolve the problem. You can listen to the 911 call here.

  The 911 operator dispatched the police, and when the police arrived, they explained that it was wrong to call 911 over a dispute like that. Osman didn't see the problem. The police then arrested Osman for improper use of 911, a misdmeanor. The statute, O.R.S. § 165.570(1)(a), states:
A person commits the crime of improper use of an emergency reporting system if the person knowingly . . calls a 9-1-1 emergency reporting system . . . for a purpose other than to report a situation that the person reasonably believes requires prompt service in order to preserve human life or property.
What do you think -- should the charges stick?

  If you're curious, there has been only one Oregon case interpreting the statute. In In re Strickland, 339 Or. 595, 124 P.3d 1225 (Or. 2005), bar disciplinary proceedings were brought against an attorney who had made a bogus 911 call as part of a broader fraud scheme. The lawyer had been charged and convicted of violating § 165.570(1)(a), and the Supreme Court of Oregon was considering the consequences of his conviction for whether he had committed professional misconduct. The court commented:
A criminal defendant acts “knowingly” when he “acts with an awareness that [his conduct] is of a nature so described or that a circumstance so described exists.” ORS 161.085(8). In other words, the accused's conviction demonstrates, at a minimum, that the accused understood that he was using the 9-1-1 system to report activities that he did not reasonably believe required prompt emergency service “in order to preserve life or property.” ORS 165.570(1).
Given the facts as stated above, has Osman violated the statute?

Understanding the Point at Issue in the Judicial Empathy Debate:

Orin's recent post helpfully clarifies some of the relevant issues in the debate over judicial "empathy." I completely agree with Orin that some cases require judges to be aware of a litigant's mental state. For example, a case alleging illegal intentional race discrimination requires judges to assess evidence indicating whether or not the defendant really did intend to discriminate. As Orin notes, hardly any one denies this.

I. Empathy Goes Beyond Merely Understanding a Litigant's Mental State.

Many of those advocating "empathy" as a tool for judicial decision-making define the term far more broadly. "Putting oneself in another's shoes" - the conventional metaphor for empathy - entails a lot more than simply knowing what the other person thinks or feels. For example, I am aware that a committed anti-Semite hates and fears Jews. In that very limited sense, I might be said to empathize with him. However, I cannot feel his emotions as if they were my own, because they diverge too much from my worldview. Although I can understand the content of his beliefs, I cannot really put myself in his shoes.

To take a more immediately relevant example, consider the Lily Ledbetter case, which many advocates of judicial empathy point to as the paradigmatic instance of insufficient empathy by the conservative justices. Surely those justices understood that Ledbetter felt frustrated and perhaps angry when judges ruled that her sex discrimination claim was barred by the statute of limitations. They also likely realized that she believed she was the victim of an injustice. One would have to be a fool not to see these things.

When critics of the Ledbetter decision claim that the conservative justices lacked "empathy" for the plaintiff, they mean not that the conservative justices were unaware of her feelings, but that they failed to identify with them sufficiently. As Barack Obama recently put it, "the quality of empathy" he looks for in judges includes "understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes" [emphasis added]. Advocates of judicial empathy claim not only that judges sometimes must determine the mental states of litigants, but also show sympathetic "identification" with them. At the very least, they want judges to put themselves in litigant's shoes to a far greater extent than merely knowing what the litigants think or feel. And they want that kind of empathy to be a basis for judicial decisions in some important cases.

It is this position that I consider vulnerable to the objections I raised in my Los Angeles Times exchange with Erwin Chemerinsky. In my view, reliance on empathy tends to introduce dangerous biases and often leads to less accurate assessment of relevant empirical questions than the use of more analytical methods. I consider it inevitable that most judges - and most people - feel greater empathy for those most like themselves. Thus, abjuring reliance on empathy is essential if judges are to make impartial decisions, as is their duty in a legal system based on the rule of law.

II. Empathy and the Assessment of "Real-World Impact."

Finally, I may disagree somewhat with Orin's claim that the use of empathy is needed in cases where "[t]he applicable legal standard may call on the judge to try to assess the real-world impact of a particular practice on a person or group of people." If Orin means merely that such assessments sometimes require knowledge of those people's mental states, I don't think there is any dispute between us. But, as discussed above, that is not the kind of "empathy" that Obama and others have in mind.

"Assessments of real-world impact" do not require the use of empathy in the broader sense meant by Obama. To the contrary, such assessments are better conducted by means of systematic analysis that abjures personal identification with the litigants as much as possible. For example, social scientists often conduct rigorous studies that usefully analyze the effects of policies on people whom they do not know and have little empathy with. By contrast, as I tried to explain in the LA Times debate, relying on empathy is likely to actually blind judges to the less immediately obvious indirect effects of a decision.

In sum, no serious commentator denies that judges sometimes need to be aware of the mental states of litigants. The question is whether they should base important decisions on a form of "empathy" that goes well beyond that.

UPDATE: Just to be clear, it is not my purpose to defend the Ledbetter decision. I don't know enough about the relevant legal issue to have any strong opinion on whether it was correctly decided. I do think that it should have been decided without relying on empathetic identification with either side.


The Missing Case of Connecticut v. AEP:

In June 2006, a three-judge panel of the U.S. Court of Appeals heard oral argument in Connecticut v. American Electric Power, a suit filed by several state AGs against several large utilities alleging the emission of greenhouse gases from their facilities constitute an actionable "public nuisance" by contributing to climate change. Judge Sonia Sotomayor was the presiding judge. Nearly three years later, the Second Circuit has yet to issue an opinion.

Jonathan Zasloff noted this extraordinary delay on Legal Planet early in the week (prompting this post of mine on NRO's Bench Memos). Now Marcia Coyle of the National Law Journal has a longer story looking at the case and the unreasonable delay.

The case was docketed with the circuit court in September 2005; briefing was completed in March 2006, and argument was held June 7, 2006. The Sotomayor panel asked for additional briefing on the impact of the Supreme Court's climate decision, Massachusetts v. EPA, and that briefing was filed in July 2007.

Some lawyers who practice before the circuit court said the delay — three years from oral argument — is unusually long. The circuit disposes of cases on the merits an average of 17.6 months from notice of appeal to final disposition, according to statistics compiled by the Administrative Office of the U.S. Courts, and 0.6 months from hearing to full disposition.


Sotomayor's "Temperament" -- Take Two:

Tomorrow's NYT features a story by Jo Becker and Adam Liptak examining the question of Judge Sotomayor's temperament. The article reinforces some of the critical claims that have been made — such as her questioning style at oral argument — but generally presents a favorable picture of her performance on the bench.

To supporters, Judge Sotomayor’s vigorous questioning of the Bush administration’s position in the case of the Canadian, Maher Arar, showcases some of her strengths. She is known as a formidably intelligent judge with a prodigious memory who meticulously prepares for oral arguments and is not shy about grilling the lawyers who appear before her to ensure that she fully understands their arguments.

But to detractors, Judge Sotomayor’s sharp-tongued and occasionally combative manner — some lawyers have described her as “difficult” and “nasty” — raises questions about her judicial temperament and willingness to listen. Her demeanor on the bench is an issue that conservatives opposed to her nomination see as a potential vulnerability — and one that Mr. Obama carefully considered before selecting her.

Another tidbit in the article is that Harvard law professor Laurence Tribe apparently "served as an advisor" to the nomination process

UPDATE: Ted Frank adds some thoughts here.


Judge Sotomayor's "Unscripted" Moments:

Today's Washington Post reports:

conservatives have seized upon Sotomayor's unscripted moments to make the case that she is outside the mainstream. The two most often quoted are a statement she made about how appellate judges make policy and her observation about how being a Latina affects her role as a judge: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." [emphasis added]

The initial comment that "policy is made" in the appellate courts was clearly an "unscripted," off-the-cuff remark, and one that I think was overblown. The other one, however, comes from the published version of a prepared speech. So it was hardly "unscripted" and, in all likelihood, it was not unedited either. I suppose it's possible that the text of the speech published in the Berkeley Law Raza Law Review was the raw transcript, but I highly doubt it. Much more likely, Judge Sotomayor had ample opportunity to review the text of her speech prior to publication, making corrections and clarifications where necessary. Thus, in this case, there is every reason to believe that Judge Sotomayor's words were precisely what she meant to say -- and not quite an "unscripted" moment.


Thursday, May 28, 2009

The Information Superhighway Metaphor: Internet law decisions and commentary from a decade ago frequently speak of the Internet as the "Information Superhighway." My sense is that the metaphor is no longer in much use, and I wonder if wireless Internet access killed it. If Internet access is everywhere, there's no room for a highway: the sense of a bulky passageway doesn't work anymore. Or maybe the problem is that we no longer log on to the Internet using a dial-up modem? The noise made by dial-up modems did seem a little like ramping up onto something moving.

Rivers and Words:

Which English words (that are not proper nouns) stem from the names of rivers? Let's set aside, as not very interesting, the terms for people or cultures from an area close to or related to the river (which might be proper nouns in any event).

Please check your answers (for instance, in before posting them, rather than just relying on vague memory or guesswork. Note that I might (or might not) delete some comments that seem to be nonresponsive or duplicative in order to keep the thread focused on the answers.


Doctrinally Relevant Empathy and Doctrinally Irrelevant Empathy: I wonder if the discussions about "empathy" that we're likely to have in the next few months might be advanced a bit by distinguishing doctrinally relevant empathy from doctrinally irrelevant empathy.

  In some areas of law, the relevant legal test absolutely requires judicial empathy. The applicable legal standard may call on the judge to try to assess the real-world impact of a particular practice on a person or group of people, and judges cannot do that successfully without putting themselves in the shoes of the person who might be impacted. We might label this "doctrinally relevant empathy." It's a sort of worldliness that allows a judge to apply the law in a realistic fashion. Everyone agrees that this sort of empathy is not just good, but absolutely necessary.

  We might distinguish this from what we could call "doctrinally irrelevant empathy." In this setting, empathy is not directly relevant to the rule or standard to be articulated or applied by the court. The relevant legal question does not provide a standard by which empathy is implicated. Instead, empathy is a quality rooted in a normative sense of justice or fairness that helps the judge articulate or apply a rule in a way that achieves a more fair or more just result. This latter kind of empathy is the kind of empathy that is controversial.

  My sense is that a lot of discussions about empathy and the judicial role mix up these two categories. One side will say empathy is bad, thinking of the second category; another will say empathy is absolutely necessary, thinking of the first. I think keeping these two categories somewhat distinct might be helpful; perhaps it will keep the two sides from talking past each other.

  I realize that the distinction I'm suggesting here isn't a simple one. The line between doctrinally relevant empathy and doctrinally irrelevant empathy can be difficult to draw, as there are many legitimate sources of legal interpretation and they may make empathy relevant in some ways and irrelevant in others. But I think it's a modestly helpful distinction that can at least someone lessen the confusion over the debate of empathy's role in legal interpretation.

  UPDATE: It occurs to me that an example might be helpful, so here's a highly stylized one that can at least focus the debate a bit (although I'll make up the hypo in a way design to keep the debate going, not end it).

  Imagine a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is "very painful," but that claims seeking to avoid the method of execution must be filed more than 48 hours before the scheduled execution occurs and are defaulted if they are filed later. Two prisoners facing the same method of execution file their petitions. Prisoner A files his petition seeking to avoid the method of execution 72 hours before his scheduled execution. Prisoner B files his petition seeking to avoid the method of execution 47 hours before his scheduled execution, 1 hour late.

  I think everyone would agree that judges would need empathy to evaluate Prisoner A's claim accurately. Empathy is legally relevant here: Judges would have to learn all about the setting of the execution, and to imagine how painful the method of execution would be from the standpoint of the condemned. This is doctrinally relevant empathy, and it's not controversial. Of course, there could be controversies over what empathy requires, with different people reaching different conclusions about what methods of execution are "very painful." But no one disagrees that empathy is relevant and necessary to decide the case.

  On the other hand, the role of empathy in deciding whether to hear Prisoner B's claim despite being filed an hour late is genuinely controversial. Empathy isn't directly relevant to the legal issue, at least as I have framed it: The only issue is the timing of when the claim was filed. But different people will have different views about whether it is appropriate for judges to take into account what they may see as injustice — drawn, perhaps, from their views of the death penalty and the fact that the claim was filed just one hour late — to look particularly hard at whether they can fashion a rule that allows the claim despite being filed too late.

My LA Times Debate with Erwin Chemerinsky, Part 2:

The second part of my LA Times debate with Erwin Chemerinsky over the Sotomayor nomination is now available, here. In this series of posts, we consider the pros and cons of judicial reliance on "empathy" in making legal decisions:

President Obama has come under fire for his "empathy" standard in selecting a Supreme Court nominee. Is there a conflict between considering the real-world implications of Supreme Court decisions and staying true to the intent of the Constitution and federal law?

I argue that relying on empathy is likely to reduce the quality of judicial decision-making and bias it in favor of whatever groups the judges feel more empathetic towards. Chemerinsky contends that judicial reliance on empathy is both inevitable and often a positive good.

Writing the piece on empathy helped me to clarify my thinking on the subject. However, I fear that to some extent Chemerinsky and I are talking past each other. I don't disagree with Chemerinsky's claims that conservative justices (like liberals) sometimes base decisions on empathy and on their political ideology, and that judicial reliance on empathy cannot be completely eliminated. Still less do I reject his claim that cases that come before the Supreme Court often don't have easy answers (a point I noted myself). Rather, my view is that reliance on empathy is a negative rather than a positive - whether practiced by conservative judges or liberal ones. I also think that it is a poor way to resolve either close cases or easy ones. Finally, I have no wish to defend all of of the jurisprudence of the current conservative justices or to suggest that they always meet the standard of judicial impartiality I advocate. Ultimately, I think the real issue is not whether conservative and liberal judges sometimes rely on empathy (they both obviously do), but whether we should strive to reduce such reliance or increase it.

Part I of our debate is available here. The discussion will conclude tomorrow.


Does the Convention Against Torture apply to abortion?

The Convention Against Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The United Nations Committee Against Torture oversees the implementation of the treaty. Among the nations which have ratified the CAT is Nicaragua. The government of Nicaragua, which is currently led by the Sandinista National Liberation Front, has outlawed abortion in all circumstances. A May 15 report from the UN Committee suggested that the ban is a violation of the Convention Against Torture. In the country report for Nicaragua, the Committee wrote:
The Committee was deeply concerned about Chile’s [sic] anti-abortion law, which prohibited abortions even in cases of rape, incest or when the life of the mother was at stake. That meant that women victims of violence were subjected to continuing violations, placing them under serious traumatic stress with the risk of incurring long-term psychological problems. A further concern were reports that human rights defenders were systematically harassed and received death threats, as well as the fact that women defenders of reproductive rights were subjected to criminal investigations.
Amnesty International has been pushing the issue, and castigated Nicaragua's abortion law in an April report to the UN Committee. After the Committee issued its statement, AI called on Nicaragua to comply wiht the CAT by liberalizing its abortion laws, including by repealing all criminal sanctions against abortion providers.

The AI argument, and the UN's partial support for the argument, strike me as a good example of the UN's readiness to use human rights treaties to advance an agenda which has no genuine relation to the treaties. A report from C-Fam indicates that other UN Committees have been using their own particular treaties to pressure Nicaragua on abortion.

It is indisputable that childbirth is often very painful, and that some pregnancies can have severely painful or life-threatening complications; it is also true that abortion can cause "severe pain and suffering" for the fetus. However, the CAT itself defines "torture" only to include "severe pain and suffering" which is inflicted for certain motives--none of which appear to be present in Nicaragua's case. Rather, the Nicaraguan law appears to have been enacted for the purpose of protecting fetal life--not surprising in which a country where almost all the people are either Roman Catholic or evangelical Protestant.

The UN Committee raised concerns about harassment of "human rights defenders" and "women defenders of reproductive rights." The claims of harassment (if factually accurate) would very likely indicate violations of other human rights treaties which guarantee freedom of speech, of political activism, and so on. But the harassment (as long as it fell short of torture) would seem entirely unrelated to the jurisdiction of the UN Committee Against Torture, unless one concludes (as AI argues) that banning abortion is sometimes a form of torture; in that case, pro-abortion speech would be considered anti-torture speech, and therefore the harassment of speakers have some relevance to the international law against torture.

FWIW, if I were an American legislator (and presuming that Roe v. Wade had been overruled) I would not vote for a law like the Nicaraguan one, and if I were a Nicaraguan, I would never vote for a Sandinista. But the facts do suggest that the UN Committee is treating the Sandinista government very unfairly, indeed unlawfully.


Cardozo, Sotomayor, and "Hispanic":

The Pew Research Center has an interesting item on the subject. An interesting item (one of many in the piece):

[S]ome 99% of all immigrants from Mexico call themselves Hispanic. But just 87% of immigrants from Venezuela adopt this label, as do 86% of immigrants from Argentina, 70% of immigrants from Spain and only 67% from Panama. As for race, 54% of all Hispanics in the U.S. self-identify as white, 1.5% self-identify as black, 40% do not identify with any race and 3.8% identify as being two or more races.

Thanks to Prof. J. Michael Bitzer for the pointer.

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A Fun Little Judicial Diatribe

From Stewart v. Howe, 17 Ill. 71 (1855):

This was an action for slander, commenced by Sophia Howe, by her next friend, complaining of Amos Stewart. The words, as proved, were: “She stole my money;” ““she stole ninety dollars;” “she is a smart little thief.” It was also in proof that Sophia was but nine years and nine months old....


The slanderer insists, in effect, upon the infancy of his intended victim, in justification of his malice. Feejee cannibalism could ask no greater license or security for the gratification and satiety of its unnatural and morbid appetite. I must confess that while the law recognizes the speaking and publication of actionable words as a wrong and injury, for which it offers a remedy, I shall feel, if judges may be allowed that pardonable weakness, that such a defence has not a solitary grace to recommend it to favor. I would sooner see the action abolished, than to read out infancy from the pale of its protection. If there can be a redeeming trait in the character of the cormorant, it must be in satiating his gluttony upon the strong and powerful, at the hazard of physical retribution. But judges have no right to feel, or at least to make it a predicate of their judgment. It is the head, and not the heart; and from it must proceed justice, legal justice, though the heavens fall by the fiat....

[The defendant's argument was that the statement would only be slanderous, at least in these circumstances, if it alleged that plaintiff had committed an indictable crime — and that couldn't be the case, because she was under the age of 10, and state law treated children under 10 as not being criminally responsible. The judge engaged in an extensive rebuttal of the argument, and concluded: -EV]

The law may and will spare infancy, but the slanderer cries aloud and spares not. I am not called on to say how young a plaintiff may sustain this action for words imputing crime, but, as called upon in this case, I am compelled to say that this plaintiff shall not shield himself from accountability, by alleging defendant's infancy, which should have afforded a conclusive reason for charitable forbearance of his malice and shall not constitute a shield and ground of defence to him.

UPDATE: "Plaintiff" and "defendant" are thus in the original (at least on Westlaw). I take it that the judge said this because Stewart, the defendant at trial, was the appellant before the Illinois Supreme Court (that's why his name is first in the case name), and Howe, the plaintiff at trial, was the appellee; perhaps in the lingo of the time, this led them to be called plaintiff and defendant (something that wouldn't be done today). Or maybe the judge just erred.


Alex Acosta to Head Florida International Law School:

I see that my old friend Alex Acosta has been hired as the new dean of the young law school at Florida International University. He was for the past several years the U.S. Attorney in Miami and was at the DOJ before then. At 40, he must surely be one of the youngest law school deans in the country. He's a smart, able guy with a lot of energy and I think he'll do a terrific job in this post. Congratulations to Alex.

Perhaps the Most Riveting First Chapter I Have Ever Read: I have just finished reading the first chapter of my GW colleague Paul Butler's new book, Let's Get Free: A Hip-Hop Theory of Justice.

  Wow! In the first chapter, Paul details a remarkable story that he has never publicly told: That when he was a federal prosecutor at the Justice Department, in the Public Integrity Section as part of the DOJ Honors program, he himself was arrested, charged, and went to trial for simple assault in DC Superior Court thanks to a vindictive and mentally unstable neighbor and a DC cop who took the stand and lied about what he saw. Fortunately, Paul was acquitted by the jury after about 5 minutes. The government's theory of the case completely fell apart at trial. But Paul's retelling of the story — and his reflections on why he was arrested and why he was able to mount a successful defense — make for truly riveting reading. Perhaps part of my reaction follows from the fact that Paul has been a wonderful colleague since I joined GW in 2001, so I trust him and I have no doubt he is telling the truth. But If so, that's only part of it: It is really a very well told story.

   In the part of the book I haven't read yet, Paul then uses that story as a launching point to discuss his views of race in the criminal justice system, jury nullification, and the war on drugs. I assume I'll disagree with Paul about a lot of it, as he and I come from pretty different perspectives on these issues. But for now I just wanted to flag the first chapter. Whatever your views, it really should be required reading for law students interested in the criminal justice system.

A Rare Circuit Case Allowing a "Rational Basis" Challenge To Go Forward:

Dias v. City & County of Denver (paragraph break added):

[T]he plaintiffs have alleged a substantive due process violation sufficient to survive a motion to dismiss for failure to state a claim. Viewing the factual allegations in the light most favorable to the plaintiffs, as we must, the complaint plausibly alleges that the [pit bull ban] Ordinance is not rationally related to a legitimate government interest. Although the plaintiffs may be unable to demonstrate through evidence that the Ordinance is irrational, the complaint makes out a claim for relief.

It is uncontested that Denver has a legitimate interest in animal control -- the protection of health and safety of the public. Even so, the plaintiffs have alleged that the means by which Denver has chosen to pursue that interest are irrational. In particular, the plaintiffs contend that there is a lack of evidence that pit bulls as a breed pose a threat to public safety or constitute a public nuisance, and thus, that it is irrational for Denver to enact a breed-specific prohibition.

Pointing to the cases where courts across the country have rejected substantive due process challenges to pit bull bans, Denver argues that the Ordinance is rational as a matter of law. This argument misconceives the nature of the plaintiffs’ challenge. Specifically, the plaintiffs contend that although pit bull bans sustained twenty years ago may have been justified by the then-existing body of knowledge, the state of science in 2009 is such that the bans are no longer rational. [Footnote: Moreover, in the majority of cases where courts have sustained a pit bull ban as reasonable, they have done so based on a developed evidentiary record. No such record was developed in this case because the district court dismissed pursuant to Rule 12(b)(6).]

This claim finds some support in the AKC and UKC standards themselves, to which the plaintiffs direct us. The official UKC breed standard for the American Pit Bull Terrier, for instance, states that “[American Pit Bull Terriers] make excellent family companions and have always been noted for their love of children.” American Pit Bull Terriers are an “extremely friendly” breed “even with strangers. Aggressive behavior toward humans is uncharacteristic of the breed ....” Similarly, the AKC breed standard for Staffordshire Bull Terriers states that, “with its affection for its friends, and children in particular, its off-duty quietness and trustworthy stability, [the Staffordshire Bull Terrier is] a foremost all-purpose dog.” Without drawing factual inferences against the plaintiffs, the district court could not conclude at this early stage in the case that the Ordinance was rational as a matter of law.

We have no occasion to pass upon the ultimate merit of plaintiffs’ substantive due process challenge; that is not our role at this juncture. We are constrained to deciding if the complaint alleges facts sufficient to state a claim for relief. Whether the plaintiffs can marshal enough evidence to prevail on the merits of their claim that the Ordinance is irrational is a different matter entirely. But at the 12(b)(6) stage, we must assume that they can, even if it strikes us “that a recovery is very remote and unlikely.” Crediting the allegations in the complaint, and drawing all inferences therefrom in the light most favorable to the plaintiffs, we conclude that they have stated a plausible substantive due process violation.

Not a huge victory for the plaintiffs, for reasons the quote makes clear -- but still something of a victory, and one that in my experience has been pretty rare, given the Court's view that "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge [and substantive due process challenge -EV] if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

Thanks to How Appealing for the pointer.


Sixth Circuit Upholds Participation of Churches in an Evenhanded Urban Beautification/Refurbishment Program:

American Atheists v. City of Detroit involves a program that “reimburse[d] up to 50% of the costs of refurbishing the exteriors of downtown buildings and parking lots” “in a discrete section of downtown Detroit,” and “covered all property in that area, including property owned by religious organizations.” The program was apparently prompted by the city’s desire to put on a good face for the then-upcoming 2006 Super Bowl, which was to be held in a city-built stadium.

“Of the $11.5 million allocated for completed and authorized projects, 6.4% ... went to [three] churches” in the area, but the court found that this was not a problem, chiefly because of the evenhanded nature of the funding program. Seems exactly right to me, as a matter of basic principles, namely that equal treatment is not establishment. Given the messy state of current Establishment Clause law (compare Mitchell v. Helms with Rosenberger v. Rector and Zelman v. Simmons-Harris), the result is not doctrinally obvious, but I think the panel makes a very good argument that it is correct even under the splintered Mitchell decision.

And as the court put it,

Excluding the churches from taking part in the program, by contrast, would send a far stronger message [than the alleged message of endorsement of religion sent by the inclusion of the churches -EV] — a message not of endorsement but of disapproval. It may be that the First Amendment did not compel Detroit to include religious groups in this downtown revitalization project, cf. Locke v. Davey, 540 U.S. 712, 719–21 (2004), but neither did it prohibit Detroit from including these groups in the project — either to enhance the success of the program (by revitalizing all of downtown) or to avoid sending a message of hostility to people of faith.

I agree with the dissent in Locke v. Davey, and think that discriminatory exclusion of religious people or institutions from generally available funding programs should be seen as unconstitutional. But even given the Court's contrary ruling in Locke, the Sixth Circuit's logic in the paragraph I quoted (and in the rest of the opinion) strikes me as quite right.

I should note, of course, that there are lots of good libertarian reasons for opposing government construction of stadiums, or government funding for refurbishing private buildings and parking lots. But if such funding is to take place, it's not necessary (and in my view, not proper) to discriminatorily exclude religious institutions from such evenhanded funding programs. Thanks to How Appealing for the pointer.


Property Rights in Web Sites:

Check out Conwell v. Gray Loon Outdoor Marketing Group, Inc., decided May 19 by the Indiana Supreme Court. Is a custom-designed and designer-hosted Web site a good or a service? Who owns the site? Can the deletion of the site by the host (for nonpayment of the bills) constitute tortious conversion of the supposed owner's property? Not the sexy sort of cyberlaw, just the practically important sort.


Is Judge Sotomayor a "Closet Sovereigntist"?

At Opinio Juris, Julian Ku has a brief but interesting post looking at some of Judge Sotomayor's opinions involving the application of international law.


Rosen on Sotomayor Redux:

Jeffrey Rosen has another short item on Sonia Sotomayor up at TNR. Rosen does not disavow his earlier criticism of Sotomayor, but also claims he never argued she "didn't have the potential to be a fine justice." While acknowledging she "obviously" was not his first choice, Rosen writes that "[n]ow is the time to think more broadly about the role Justice Sotomayor is likely to play on the Supreme Court." According to Rosen, " the strongest case to be made for Sotomayor is the idea that the range of her experience--as a trial judge, appellate judge, and commercial litigator--might give her the humility to recognize that courts participate in a dialogue with the political branches when it comes to defining constitutional rights, rather than having the last word. "


Sonia Sotomayor: Legal Realist:

The WSJ reports on Judge Sotomayor's embrace of legal realism and the work of Jerome Frank.

UPDATE: The speech in question was published as "Returning Majesty to the Law and Politics: A Modern Approach" (with Nicole Gordon), 30 Suffolk U.L. Rev. 35 (1996) [and is available in PDF here]. Ed Whelan also comments on the speech here.

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Sotomayor vs. Alito Revisited:

In an earlier post on Sotomayor's nomination I wrote that the quantitative data on Justice Samuel Alito's record on the court of appeals showed that he had a "substantial edge" over Sotomayor in terms of judicial distinction. Co-blogger Eric Posner now presents new data showing that Sotomayor's recent record stacks up well against Alito's by various measures. I agree with most of Eric's analysis. As Eric stated, it's not clear that Sotomayor's higher citation count proves that she was actually much more successful than Alito, since Second Circuit decisions likely get more citations than Third Circuit ones. But it can no longer be said that the quantitative data show that Alito had a "significant edge" over Sotomayor.

As I stated in the original post, my reservations about Sotomayor are primarily focused on her judicial philosophy and the substance of her decisions rather than on competence. I agree with Barack Obama's view that it is sometimes justifiable to oppose a technically competent nominee on philosophical grounds. I took the same position during the Bush Administration, and I still hold to it now. Even so, it's important to recognize that new evidence reveals that my original unfavorable comparison of her judicial record to Alito's was probably wrong.

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Sotomayor's "Latina Judge's Voice" Speech Revisited:

After some consideration, I have decided that Sonia Sotomayor's 2001 speech, "A Latina Judge's Voice" deserves more extensive analysis than I gave it in a previous post. I still believe that the speech shows that Sotomayor thinks that judges can often legitimately base decisions in part on their racial or ethnic backgrounds. I especially think that that interpretation is by far the most plausible reading of Sotomayor's statement that she hopes 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."

However, it would be foolish to overlook the fact that many people, including serious commentators such as University of Texas lawprof Frank Cross and Reason's Kerry Howley believe that the relevant part of the speech is actually innocuous. I can't ignore the possibility that the speech is unclear, or that I just got it wrong. At this point, however, I still think that my initial interpretation was largely correct, and in this post I will try to explain why. For convenience, here is the entirety of the paragraph where the "wise Latina woman" sentence occurs:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

I. Is Sotomayor's Claim Limited to Discrimination Cases?

Some of my critics, including Cross, argue that this passage merely means that a Latina judge will, on average, do better than white males in deciding discrimination cases (perhaps because of her greater personal experience with discrimination). The first sentence of the next paragraph does in fact state that we should "not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society." However, it seems unlikely that Sotomayor's claim really is limited to such cases. After all, she made it in explicit response to Justice O'Connor's far more general statement that "a wise old man and wise old woman will reach the same conclusion in deciding cases." If Sotomayor meant to say that O'Connor's argument is correct the vast majority of the time with the exception of discrimination cases, it is strange that she gives no hint of that. Moreover, in an earlier part of the speech, Sotomayor denies that the goal of transcending one's race in judicial decisionmaking "is possible in all or even in most cases." That suggests that she believes her argument to have much broader application than merely to discrimination cases.

Even if Sotomayor's claim really is limited to discrimination claims, it is still deeply problematic. It is wrong to assume that a judge belonging to a group that is often victimized by a particular type of injustice will be generally superior in deciding cases that address it. Are white male judges generally superior in hearing reverse discrimination cases such as the one Sotomayor decided in Ricci v. DeStefano? Are judges who own real estate better qualified to hear takings claims? Perhaps judges who own businesses are the ones best qualified to hear claims asserting that an economic regulation is unconstitutional or otherwise illegal. A judge belonging to a group victimized by a particular type of injustice might be less likely to reject similar claims that have merit. On the other hand, she might also be excessively prone to accept claims that should be rejected or to ignore important interests on the other side of the case. Which effect dominates the other will probably vary from judge to judge and from case to case. In any event, we will likely be better off if judges assess discrimination cases and other claims as objectively as possible, while seeking to minimize the impact of their own personal racial or ethnic backgrounds.

II. Did Sotomayor Merely intend to Recognize the Impact of Judges' Racial Backgrounds on their Decisions, Without Embracing it?

Other critics, including Howley, argue that Sotomayor merely meant to recognize the commmon sense point that judges' decisions are sometime affected by their racial backgrounds, without claiming that this is a good thing. In one part of the speech, Sotomayor does indeed state the following:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

However, in the very next sentence Sotomayor said that "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." This suggests that it isn't necessarily a good idea for judges to strive to "transcend . . . personal sympathies and prejudices." In combination with the above-quoted statement about the supposed superiority of Latina judges over white male ones in deciding many cases, it seems that Sotomayor believes that judges not only take account of their racial background in making decisions, but are often justified in doing so. Perhaps Sotomayor also believes that judicial transcendance of personal sympathies and prejudices is a desirable goal; but since in her view it is probably impossible to achieve in a large number of cases, it will often be a "disservice" to pursue it at the expense of denying the special insights that might sometimes be had by relying on those "prejudices" after all. That doesn't mean that Sotomayor believes that a judge's race or gender is a useful resource in all cases or that impartiality is completely worthless. After all, she said that the "wise Latina" judge is likely to do better "more often than not," not that she will have an advantage across the board. However, it's clear that she does believe that race and gender are useful guides to judicial decisionmaking in at least a large number of situations.

In addition, if Sotomayor really did merely mean to say that judges sometimes wrongly take account of their personal background in deciding cases, there would have been no need to dwell on such an obvious point at great length - one that hardly any serious commentator disagrees with. The real question - the one she actually tried to address - is how we should react to this state of affairs. One approach - the one I think best - is to try to appoint judges who will ignore their own racial backgrounds as much as possible and to strive to promote that as a norm for all judges to follow. Sotomayor's approach, by contrast, is to endorse reliance on personal background in at least some cases, and to urge minority judges to offset the "personal sympathies and prejudices" of their white colleagues with their own.

Finally, I think it's telling that hardly any one would defend a similar statement made by a white male judge. As legal columnist Stuart Taylor puts it:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences" [as Sotomayor did later in her speech].

I don't think that Sotomayor is a "racist and a sexist," nor do I think she should be "banished from polite society." However, her statement does show that she believes that judges should often base decisions in part on their personal racial and gender backgrounds. If a white male judge had said something similar, few would deny that such (or something much worse) was the import of his words. Sotomayor's speech should be judged by the same standards.

I would have cut Sotomayor more slack if the statements in question had been off the cuff remarks rather than part of a prepared speech delivered as a keynote address at a conference; the speech was also published in a law journal in 2002, at which point Sotomayor could have removed or clarified any part of her remarks that didn't really reflect her considered views. I would also be willing to ignore the speech if she had repudiated it at any time in the past eight years. I will even give her the benefit of the doubt if she repudiates the more problematic parts of the speech now (perhaps at her confirmation hearings). We have all sometimes made mistaken statements that we admit to be wrong in retrospect. But until that happens, I can't avoid the conclusion that the speech reveals a troubling element of Sotomayor's view of judging.

UPDATE: Frank Cross authorized me to post the following from e-mails he sent me clarifying his position:

I didn't mean the statement was innocuous. Just that it was limited to the discrimination context. I think it is objectionable in that context as well. Though not outrageously so, as I suspect it is a common psychological feeling for anyone that they are right and others wrong . . .

I think she was talking about the discrimination context, I think it's wrong to say that a Latina woman would make a "better" decision than a white male in this context, but I think it is right to think that a panel including diversity would make a better decision in this context.


Wednesday, May 27, 2009

Judge Sotomayor: More Data, and a New Conclusion.

In an earlier post, I compared Judge Sotomayor with other judges, including Judge Wood, who were ranked in a paper by Choi and Gulati. Choi and Gulati focused on three statistics—productivity (number of opinions written per year), quality (citations), and independence (propensity to disagree with same-party judges). I found that Judge Sotomayor did not compare well with the other judges, and concluded that “The bottom line is that Judge Sotomayor is about average, or maybe a bit below average, for a federal appellate judge.” However, I also noted that a problem with the comparison is that I used data from the beginning of Judge Sotomayor’s tenure (1999-2001), so as to make the comparison with Choi and Gulati’s 1998-2000 data as fair as possible. If a “freshman effect” exists—if less experienced judges are worse than more experienced judges, which seems plausible—the comparison is not in fact a fair one.

To address this problem, Choi, Gulati, and I—with the help of Mirya Holman of Duke Law School and several Duke Law School students—collected and analyzed data from 2004 to 2006. We can no longer compare the results to the 1998-2000 data set because of possible changes in the composition of case loads and other factors, or at least we should be very cautious. Because we did not have time to collect 2004-2006 data for all court of appeals judges so that we can supply a complete ranking, we decided to compare Sotomayor with the other court of appeals judges who were rumored to be on President Obama’s shortlist, and with a kind of control group consisting of court of appeals judges rumored to be on President Bush’s shortlist in 2005. The results are at the bottom of this post (with apologies for the wretched formatting).

The freshman effect is vindicated: by 2004-2006 Judge Sotomayor has, on several measures, exceeded her colleagues. On total citations—a measure of general influence that reflects number of opinions as well as citations per opinion—Sotomayor ranks third after Lynch and Wood. On citations to top 20 opinions, Sotomayor ranks first. With 512 citations to top 20 opinions, Sotomayor would have been sixth in this category in Choi and Gulati’s ranking (Wood’s high numbers for 2004-2006 are also consistent with her performance in that ranking). On citations per opinion—which favors judges like Sotomayor who write few opinions—Judge Sotomayor dominates all of the shortlisted judges. She ranks third on law review citations per opinion.

Not everyone agrees that citation is a good measure of quality. And there may be hidden biases in the data. For example, if the tenth circuit hears less important cases than the second circuit does, a tenth circuit judge like McConnell may be cited less—because he hears disputes that are less important, not because his opinions are not good. In addition, judges in large circuits are hurt because the set of out-of-circuit opinions that could cite them is smaller than it is for judges in small circuits. Still, the numbers seem pretty robust, and the comparison here is with well-respected judges, not with ordinary judges. Sotomayor looks good.

We also checked how many cases received a Westlaw “red flag,” which usually means that the Supreme Court has vacated all or part of a holding. Judge Sotomayor seems about average or better than average, controlling for the number of cases.

As in the first analysis, Judge Sotomayor does not rank high on productivity; she is at the median for this group. However, different circuits have different productivity norms. “Productivity” really means the number of published opinions; courts frequently dispose of cases with unpublished memoranda, and the practice across circuits diverges (reflecting perhaps how busy the circuit is, or judges’ collective views about how their effort should be expended). In the Choi-Gulati dataset, the most productive second circuit judge published 109 decisions over three years; the least productive published 66; Sotomayor is somewhere around average or above average for the circuit. Meanwhile, Judge Wood sits in the super-productive seventh circuit. So given circuit norms, Sotomayor has more time to lavish on her opinions than Judge Wood does, and it is not surprising that her opinions are cited more often. In terms of overall quality, it is hard to distinguish the two judges.

We did not try to calculate independence scores because of lack of time. But we looked at dissents. The numbers here are so low that they do not convey much information. Sotomayor is about average. You can interpret this to mean that she is no more or less collegial than her colleagues, or that she is no more or less independent-minded than her colleagues.

All the usual qualifications, caveats, and disclaimers apply. But the data should put to rest the rumor that Judge Sotomayor is not a competent jurist. She holds her own among a highly respected group which includes the third (Wilkinson), eighth (Wood), eleventh (Lynch), and thirteenth (Jones) ranked judges on Choi and Gulati’s composite ranking (Alito was sixteenth). If citations reflect quality, Sotomayor may well be one of the top appellate judges in the country.

Many thanks to the industrious Duke Law School students who collected the data: Christopher Battles, Heather Horst, Luke Ortner, Christopher-David McCurdy, and Seth Reynolds.


Outside Court Citations

Top 20 Outside Court Citations

Law Review Citations

Published Opinions

Red Flag


Cites / Maj. Opinion

L. Rev. Cites / Maj. Opinion

Dissents Per Pub. Opinion

Sotomayor [D]










Wood [D]










Lynch [D]










Garza [R]










Garland [D]










McConnell [R]










A. Williams [D]










Clement [R]










Wardlaw [D]










Jones [R]










Wilkinson [R]










Related Posts (on one page):

  1. Sotomayor vs. Alito Revisited:
  2. Judge Sotomayor: More Data, and a New Conclusion.

The Financial Crisis, Free Markets, and the Nirvana Fallacy:

I'm sure everyone has seen various op-eds, blog posts, and so forth proclaiming that the financial crisis shows that capitalism can't be left "unregulated", and that the end of "free market ideology" is nigh.

It seems obvious to me, though, that critics are comparing markets (which were far from unregulated) to a hypothetical, rational, efficient, regulatory system, which is a classic nirvana fallacy.

I won't dispute that many market actors--banks, bond rating agencies, mortgage companies, etc.--hardly acquitted themselves well during the housing bubble and resulting financial crash. But exactly which government actors acquitted themselves well? The public-private Fannie and Freddie Frankensteins, which helped inflate the bubble and whose bailouts will cost taxpayers tens of billions of dollars? The Treasury Department, which failed to do anything proactive to prevent the crisis, and ultimate whose reaction to it under Paulsen ranged from subdued panic to hyperactive panic? The Federal Reserve, whose monetary policies were probably the biggest villain in the whole fiasco, and whose chairman famously argued, absurdly, that housing prices nationwide could not go down because they never had before (and even more absurdly based his policies on such nonsense)? Congress, which pushed Fannie and Freddie to make ever more risky loans, berated (and regulated) financial companies for not generously lending to subprime borrowers, and not only prevented the Bush Administration from reforming Fannie and Freddie but gave them even more lending authority just as the crisis was emerging? And which then passed a "stimulus" bill full of longstanding Democratic priorities but rather short on actual stimulus? State and local governments, which spent lavishly when bubble-related tax revenues were way up, and almost none of which prudently planned for the bubble's bursting? And which bought into the "everyone should own a house mentality" to the extent that they were disinclined to use their existing regulatory powers to rein in crazy mortgage practices (like 0 down, option arms to insolvent borrowers) and indeed barely prosecuted rampant bubble-time mortgage fraud?

Sure, if you compare actual market actors to imaginary perfect government officials, government is going to come out looking like a mighty good alternative. But if you compare actual market actors to actual government actors, it hardly seems that the financial crisis shows the latter's superiority to the former, nor does it support the idea that turning over more and more of the economy to the tender mercies of government regulation is likely to benefit the public.


My LA Times Debate With Erwin Chemerinsky over the Sotomayor Nomination:

Over the next three days, Erwin Chemerinsky, Dean of the UC Irvine Law School, and I will be debating the Sotomayor nomination at the Los Angeles Times blog. Our first two posts are available here. They address the following question:

Much has been made of the fact that Sonia Sotomayor would be the first Latina justice, and sitting Justice Ruth Bader Ginsburg has said she feels "lonely" as the only woman on the bench. How much, if at all, does the ethnic and gender diversity of the Supreme Court bench matter?

Erwin argues Sotomayor's racial and gender background will be a major asset to the Court. In my view, the appointment of a Hispanic Supreme Court justice is a important symbolic sign of racial progress; but Sotomayor should be judged much more by her record on legal issues (which I think is problematic) than by her background.

I am happy to have the opportunity to debate the nomination with such an oustanding and prominent legal scholar. Ironically, I once defended Chemerinsky's appointment as UCI Dean when it was temporarily rescinded due to foolish claims that he was "too liberal" to be the dean of a major law school. However, we don't agree on too many other issues, and it should be an interesting debate.

On Thursday and Friday, we will discuss other issues related to the nomination.


"[Institute for Justice] Challenges Licensing of Speech For Interior Designers":

See here for details and links.

UPDATE: Here's a video from IJ about the case.


Lawsuit Alleging that AIG's Use of Sharia-Compliant Financing Violates the Establishment Clause Survives a Motion To Dismiss:

The case in Murray v. Geithner, and here's an excerpt:

A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted tests the legal sufficiency of Plaintiff’s claims. The Court must accept as true all factual allegations in the pleadings, and any ambiguities must be resolved in Plaintiff’s favor. While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. Thus, a plaintiff must make “a showing, rather than a blanket assertion of entitlement to relief” and “[f]actual allegations must be enough to raise a right to relief above the speculative level.” ...

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.”. The clause has been construed as preventing the government “from enacting laws that have the purpose or effect of advancing or inhibiting religion.” The Court examines Establishment Clause challenges under the test delineated in Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971): “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Recent Supreme Court decisions have modified the test slightly by “fold[ing] entanglement analysis into the effect analysis because ‘entanglement is . . . an aspect of the inquiry into a statute’s effect.’” Establishment Clause queries are conducted under the objective reasonable observer standard.

It is beyond question that the EESA [the Emergency Economic Stabilization Act of 2008] does not violate the Establishment Clause on its face. Congress enacted the EESA in response to what the parties portray as a monumental economic crisis for the sole purpose of restoring stability to financial institutions. The statute makes no mention of religion or religious institutions. Instead it focuses entirely on institutions that are primarily, and in most cases entirely, secular. Nothing from the plain text of the statute hints at an improper relationship between the government and religion.

It is the application of the EESA as it relates to AIG, however, that Plaintiff challenges. The Supreme Court has previously permitted as-applied challenges to facially constitutional statutes. ...

The circumstances of this case are historic, and the pressure upon the government to navigate this financial crisis is unfathomable. Times of crisis, however, do not justify departure from the Constitution. In this case, the United States government has a majority interest in AIG. AIG utilizes consolidated financing whereby all funds flow through a single port to support all of its activities, including Sharia-compliant financing. Pursuant to the EESA, the government has injected AIG with tens of billions of dollars, without restricting or tracking how this considerable sum of money is spent. At least two of AIG’s subsidiary companies practice Sharia-compliant financing, one of which was unveiled after the influx of government cash. After using the $40 billion from the government to pay down the $85 billion credit facility, the credit facility retained $60 billion in available credit, suggesting that AIG did not use all $40 billion consistent with its press release. Finally, after the government acquired a majority interest in AIG and contributed substantial funds to AIG for operational purposes, the government co-sponsored a forum entitled “Islamic Finance 101.” These facts, taken together, raise a question of whether the government’s involvement with AIG has created the effect of promoting religion and sufficiently raise Plaintiff’s claim beyond the speculative level, warranting dismissal inappropriate at this stage in the proceedings.

I'm surprised that the court has allowed the case to go forward, for reasons I described when the case was filed. At the same time, I continue to expect that the case will be thrown out, either on summary judgment or on appeal, for those very reasons. As I noted earlier, the theory is apparently that the government may not invest in any company that, in part of its operations, provides products that are tailored to a particular religious faith, and that may be accompanied by donations to religious charities. But lots of companies do this, for the simple reason that religious consumers have their religious tastes such as consumers have other ethical or esthetic tastes.

For instance, a food processing company might have a division that produces kosher products and donates some money to Jewish-specific charities (as a way of better wooing Jewish buyers). An investment company might seek to attract conservative Christian investors by offering a fund that doesn't invest in (say) hospital chains that perform abortions, and by donating some share of its profits to religious causes. Other companies might provide funds that don't invest in munitions manufacturers, to satisfy the desires of Quaker investors. A store might sell, among other products, religiously significant garments or religious symbols. A bookstore might sell religious books alongside other books.

Under the plaintiffs' theory, either Islam is subject to special constitutional constraints, or — once that constitutionally forbidden legal rule is rejected — all of these companies would somehow be forbidden as targets of government investments. The government couldn't bail them out. It presumably couldn't invest public employee retirement funds in them. It couldn't sell religious books alongside other books in public university bookstores, or serve kosher food alongside other food in public university cafeterias.

Likewise, a state-run liquor store wouldn't be able to stock kosher wine. (Visit this site, search for "kosher," and you'll see how much kosher wine the apparently Establishment-Clause-violating New Hampshire State Liquor Commission does indeed sell.) That's plainly wrong, under any sound theory of the Establishment Clause, or even under the broadest theories suggested by Justice Brennan and other Establishment Clause maximalists. (UPDATE: A state-run liquor store might be more restricted than a state-bailed-out company; for instance, it might not be able to make donations to religious causes, even to attract Jewish customers. But it would at the least be able to buy kosher wines, even from companies that themselves donate part of the proceeds to religious causes. And I think the state should be free to invest pension funds -- or bailout funds -- in a privately-owned liquor store that donates to religious causes as a means of attracting religious customers.)

The government investment decisions don't have a "primary religious purpose," because the obvious purpose is to prop up important companies — and have them continue making as much money as possible — and not to advance Islam. The government no more cares about advancing Sharia through the AIG bailout than my local Ralphs supermarket (or the New Hampshire State Liquor Commission) cares about advancing kosher laws by selling products that are certified kosher. The "primary religious effect" inquiry has always been extremely vague, but none of the precedents applying that inquiry would treat the continued provision by AIG of products that some religious customers like as a "primary religious effect."

The "endorsement" argument doesn't make sense here, because reasonable observers wouldn't treat the government's decision to bail out AIG, including its subdivision that sells financial products that Muslims prefer for religious reasons, as an endorsement of Islam. Again, the "endorsement" test is quite vague, but this is a pretty clear example: Making money by satisfying some customers' religious preferences (and lots of other customers' nonreligious preferences) isn't an endorsement of religion. Nor does the allegation that some of the money that is raised is donated to Muslim charities affect the analysis. That donating money to religious charities is good business for AIG doesn't make it impermissible for the government — which after all wants AIG to make as much money as possible, so the government isn't left paying the bill — to invest in AIG.

The only even theoretically plausible objection in such cases, I think, arises if the government becomes too entangled in the religious decisions of the company, for instance if government officials end up supervising the programs and deciding what Sharia law truly requires, or what really is or isn't kosher. But on the facts this just doesn't seem to be so: The operational decisions related to these religiously themed products and programs are made by the company (or perhaps even by the company's subcontractors), not by government officials. There seems to be no danger that some government officer would have to engage in quintessentially religious activities. And it is government decisionmaking, not government stock ownership, that triggers the Establishment Clause, which is one reason that government employee retirement plans can invest in companies without making them state actors governed by the Free Speech Clause, the Establishment Clause, the Due Process Clause, and so on. (This distinguishes the hypothetical of a government-chartered school, which remains a government actor, engaging in religious education.)

It's not exactly clear from the court's opinion what sort of facts the judge envisions might be enough to prove an Establishment Clause violation. If the judge believes that there'd be an Establishment Clause violation simply if it were proven at trial that government money is flowing to "Sharia-compliant financing," or that the government is cosponsoring an "Islamic Finance 101" forum, then the plaintiffs will win — but they shouldn't, and I'm pretty confident that such a decision would be reversed on appeal. Such catering to consumer preferences is no more an Establishment Clause violation than a state-owned liquor store's stocking kosher wine in order to satisfy its kosher-observing customers, plus educating its employees and contractors on which wines kosher-observing customers prefer.

On the other hand, perhaps the judge is waiting to see whether there's evidence of some other alleged misbehavior — maybe what I mentioned in the paragraph beginning "The only even theoretically plausible objection" (though again it's hard to tell, because the opinion is so terse on the subject). In that case, I'd expect that absent evidence of some such misbehavior, the case will be thrown out on summary judgment, as I think it should be.

Related Posts (on one page):

  1. Lawsuit Alleging that AIG's Use of Sharia-Compliant Financing Violates the Establishment Clause Survives a Motion To Dismiss:
  2. Bad Lawsuit from the Thomas More Law Center:

Pronouncing "Volokh":

A reader asked me about this today, and a radio interviewer didn't ask me, with (in my view) unfortunate results. OK, not that unfortunate, because I'm pretty easygoing about this -- when you bring an unusual name to a foreign country, you have to expect that people won't always pronounce it the way you do. But if you want to humor me, please say it in a way that rhymes with "Pollock" (with the accent on the first syllable, of course). It's not the standard Russian pronunciation, but it's the one I use myself in English.


Roberta Romano on the SEC's Proxy Access Initiative:

I thought the following informative and rather pointed email from Yale Law Professor Roberta Romano would be of interest to many readers (published with her permission):

I thought that I would pass along my reaction to a New York Times article by Gretchen Morgenson in Sunday's business section..... The article in question flunks Corporate Governance 101. Morgenson cites a study by the IRRC as supporting the SEC's proxy access initiative (a regulation proposed by the SEC by a 3:2 vote last week that has been promoted by union funds for quite some time). According to Morgenson, the study found a positive impact from dissidents elected in proxy fights. That is not news; it is well-established in the empirical literature that proxy fights increase value. Indeed, firms experience positive price effects from proxy fights even when dissidents lose.

But those data have no relevance to the proxy access proposal. Proxy fights require challengers to spend their own resources to get on the ballot and solicit votes; proxy access nominations require no such expenditures. In fact, the overwhelming empirical evidence on shareholder proposals, which are also for free and the model for proxy access, indicates that they do not add value. This should not be a surprise: the incentive for getting things right are very different when something is for free. Having to put your money where your mouth is, so to speak, means that you have to have a good grasp on how to resolve perceived problems of a firm, and select board nominees who will be effective. You also need to have a nontrivial stake in a company to engage in such activity, for the cost-benefit to work, and thus, also not surprisingly, the IRRC study Morgenson cites finds the performance impact was higher the greater the dissidents' stake. The proposed proxy access requires no expenditures, and trivial holdings (letting shareholders aggregate their holdings to reach specified levels, depending on firm size). Understanding the difference in incentives provided by the two processes is fundamental to understanding corporate governance; only someone woefully ignorant or intellectually dishonest would regard that data as relevant to the SEC's proposal.

There is nothing wrong with a journalist expressing a point of view, as Morgenson does, with respect to the efficacy of the SEC's proxy access proposal. But it is troubling when a prominent journalist does not consider a requisite part of her job to be seeking out opposing views (i.e., critics of proxy access), if not to provide balance to a piece, to ensure that she has not been misinformed by a like-minded source, and writes something, such as Sunday's column, which is an embarrassment.


Should Repubs. Fight Sotomayor? Left Bloggers say No; Righties Split:

A special poll of bloggers from The National Journal asked "Would it be politically smart for Republicans to try to block the confirmation of Judge Sonia Sotomayor?" Among the Left bloggers, the unanimous answer was "No." On the Right, 53% said "No" and 47% said "Yes."

I voted "Yes," and wrote: "The Democrats who tried to block Roberts and Alito appear to have suffered no adverse consequences. [And, I should have added, neither did the Dems. who filibustered Miguel Estrada, who, like Sotomayor, is a Hispanic with an impressive life story.] Sotomayor is on the wrong side of fairness, empathy, the Constitution and the American people in regards to firearms ownership (Maloney v. Cuomo; United States v. Sanchez-Villar); wealthy people using the government's eminent domain power to extort money from small business (Didden v. Village of Port Chester); and a racial spoils system for government employees (Ricci v. DeStefano)."


A Real Voting Scandal:

The NYT reports on a major corporation's meddling in an important vote.


Great Case Name: United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006).

New York Times Profile of Sotomayor:

Today's New York Times has a detailed front page article describing Judge Sotomayor's life story. For the most part, the article is a good account of what is indeed an inspiring tale of achievement in the face of considerable disadvantage. Unfortunately, the Times ignores or minimizes most of the problematic aspects of Sotomayor's record. For example, it manages to quote relatively innocuous statements from Sotomayor's 2001 speech, "A Latina Judge's Voice," without mentioning it's most controversial passage: the one where the judge says "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." In fairness, that statement was the focus of an earlier NY Times article by legal reporter Charles Savage, published prior to her appointment. Today's lengthy article also ignores Sotomayor's dubious decisions in important property rights and free speech cases.

However, the Times does reveal one especially damning fact about Sotomayor that I was not previously aware of. It turns out that she is a Yankees fan:

Melissa Murray, who worked for the judge from 2003-4 and is now a law professor at the University of California, Berkeley, recalled going to a Yankees game with Judge Sotomayor. The judge, a Yankees fan, bought tickets in the bleachers, which Ms. Murray said the judge preferred as a more “authentic experience,” and she appeared to be known to several in the crowd.

Judge Sotomayor's fondness for the "authentic" bleacher seats at the old Yankee Stadium leads me to wonder whether she approves of the massive public funding for the new Yankee Stadium, which has more luxury boxes but fewer total seats than its predecessor.


More on Ted Olson's federal lawsuit for gay marriage:

To be honest, when I first heard that former Bush Solicitor General Ted Olson, a rock-solid member of the conservative legal movement, had filed a federal lawsuit to invalidate Prop 8 I thought it was an Internet hoax. So I held off posting about it for awhile last night. It was a surprise because I had no idea Olson supported equality for gays and lesbians, much less full marriage rights. It was doubly a surprise because, even if he supported gay marriage, Olson struck me as the kind of conservative who would reject what many conservatives would regard as judicial activism.

But, behold, here is Ted Olson in a press release today explaining the merits of the case just filed, in which he and David Boies have requested a preliminary injunction:

“Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married,” Olson said. “These are our neighbors, coworkers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.”

“Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” Boies said. “Every American has a right to full equality under the law. Same sex couples are entitled to the same marriage rights as straight couples. Any alternative is separate and unequal and relegates gays and lesbians to a second class status.” . . .

Today’s lawsuit argues that the California’s Constitution -- as amended by Proposition 8 -- violates the Fourteenth Amendment of the United States Constitution, a provision with which all state laws must comply. Relegating gays and lesbians to “separate but unequal” domestic partnerships violates the U.S. Constitution, the suit states. California’s domestic partnership law is not an adequate substitute for access to the State’s institution of civil marriage, the suit states, because domestic partnerships do not provide all of the legal and government benefits and protections that marriage does.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:

· Violates the Due Process Clause by impinging on fundamental liberties.

· Violates the Equal Protection Clause of the Fourteenth Amendment.

· Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”

· Discriminates on the basis of gender.

· Discriminates on the basis of sexual orientation.

[Plaintiffs] Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. . . . Paul Katami and Jeff Zarrillo have been together for 8 years. . . . Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage.

You can view the press conference and see the Complaint by following the link above.

Related Posts (on one page):

  1. More on Ted Olson's federal lawsuit for gay marriage:
  2. Federal challenge to Prop 8:

Ralph Rossum on Sotomayor and Souter:

Interesting--and colorful--column by Professor Ralph Rossum comparing Sotomayor and Souter. Rossum argues that even though their voting patterns are likely to be similar, the most notable element of Souter as Justice was his inconsequentialness:

There is every reason to believe that Sotomayor will be an equally reliable member of the liberal team. The crucial question, however, is whether the Souter seat she is assuming will remain at the end of the bench.

The question is crucial because, while Souter added "bench strength" for the liberal team, he was seldom assigned to write the majority opinion. Some statistics: Since Souter's elevation to the bench in 1990 through the end of the last court's term, the Supreme Court has handed down 1,587 decisions. Souter has written the majority opinion in only 135 of them –considerably below the average of 182 majority opinions for his other eight colleagues.

And, Souter has been given the "low hanging fruit": over 53 percent of his majority opinions have been in noncontroversial unanimous decisions. In 5-4 decisions in which Souter has been in the majority, he has been assigned the majority opinion only 22 times and 13 of those 22 have involved questions of statutory construction – less momentous than questions of constitutional interpretation. Only nine times has he been assigned the writing of the majority opinion in 5/4 constitutional decisions; just one is worthy of comment: In McCreary County v. ACLU (2005), he held for the five-member liberal majority that the Establishment Clause "mandates governmental neutrality between religion and nonreligion" and on that basis banned the posting the Ten Commandments on the wall of a county courthouse; his argument, however, was so unpersuasive that he could not keep that five-member majority together in the companion case of Van Orden v. Perry in which the court held it was constitutional for Texas to inscribe the Ten Commandments on a monument placed before its statehouse.

In other words, I think Ralph is asking whether Sotomayor will turn out to be an intellectual leader or follower on the Court. He sees Souter as an intellectual follower--an assessment that I share.

Of course, Ralph's not the only one asking that question.


What Should a Judge's Reversal Rate Be?">Dave Hoffman thinks "we have no idea what an appropriate reversal rate for an appellate judge ought to be." I am not sure I would go quite that far, but I certainly agree with him that "An appellate judge’s 'reversal statistic' tells you less than you think about the 'merits' of her opinions, or even how such opinions stacked up against governing Supreme Court precedent."

[Note: Link fixed.]

Related Posts (on one page):

  1. What Should a Judge's Reversal Rate Be?
  2. Business and the Sotomayor Pick:

Sotomayor & Ricci:

Will the Sotomayor nomination influence how the Supreme Court handles the Ricci v. DeStefano case? It's certainly influenced the Obama Administration's view of the case, as their current spin does not quite match the Justice Department's amicus brief. At SCOTUSBlog, Kevin Russell has a very interesting post speculating about how the politics of the nomination might influence the outcome and opinion in Ricci.


Public College Prohibiting Distribution of "Students for Concealed Carry on Campus" Pamphlets?

The Foundation for Individual Rights in Education reports that this indeed happened, at the Community College of Allegheny County in Pennsylvania. At this point, the factual allegations are just the student's, with no confirmation by the school (the school was asked for its side of the matter on April 29, and wrote on May 13 that "a response will be forthcoming in a reasonable time frame," but hasn't said anything further). Still, I have found FIRE's past factual assertions to be quite reliable; and if the student's accusations are accurate, this seems like a serious First Amendment problem. Check out FIRE's summary, and the linked documents, and see for yourself.

I should note that the college apparently defended itself on the grounds that students couldn't use the name of the college without the college's permission. But according to FIRE, the name was used in a way that made clear that it was just identifying the location of a student group; I see no constitutional basis for the college to prohibit the use of a name in this context (though I suppose that it might, in an excess of caution, require that use of the name be accompanied with an express note that the college name is used only for identification purposes, and not as a sign of endorsement).

I should also note that the college reportedly asserted that its policy is to require preapproval of student publications; to the extent that such a policy is permitted on college property, it has to be nondiscretionary and viewpoint-neutral, and according to the student's account the college claimed that it would not approve publications that express this viewpoint. And the only policy that FIRE could find that supposedly covered this behavior (which the college reportedly labeled as "soliciation") was this one, which is pretty clearly unconstitutional:

Solicitation: The distribution or display of, and the personal contact with individuals or groups related to non-sponsored college material or events, without prior written approval of the college are prohibited. These actions are limited to public property; however, public property in this context does not include college property.

I hope to hear more about this case in the future, and especially to hear the college's side of the story.

Disclosure: I will be a keynote speaker at FIRE's 10th Anniversary event this October.


Business and the Sotomayor Pick:

Many observers (myself included) expected President Obama to nominate someone to the Court who was not particularly threatening to the business community. In short, they expected a nominee like Justice Souter, or perhaps Justice Breyer. As the WSJ reported:

As conservatives gear up to oppose President Barack Obama's eventual choice for the Supreme Court, the Republican Party's traditional heart — the business community — is laying low.

That is because both business advocates and their counterparts in the consumer and labor camps say the potential candidates most frequently mentioned seem likely to share retiring Justice David Souter's interest in providing what business wants most from courts: clear, narrow and predictable rules.

While concerned that "empathy" is code for placing a thumb on the scales to the benefit of favored groups (and against business interests), many in the business community were hopeful that the President would select someone who would fit into the Roberts' Court's overall approach to business cases. That is someone who is not overtly pro-business, but recognizes the importance of narrow rulings that reinforce settled expectations. (See also here).

Does the Sotomayor nomination conform to the business community's expectations? It's not so clear. As Overlawyered's Walter Olson notes in the Forbes column to which Eugene linked above, a handful of her rulings in business cases could be cause for concern.

Two 2006 cases present more problems for Sotomayor advocates, but they're on subject matter that could come off to the public as dry and remote: Merrill Lynch v. Dabit, where she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law (reversed 8-0 by the high court), and Knight v. Commissioner, on the deductibility of certain trust fees, in which the court upheld her result but unanimously rejected her approach as one that (per Roberts) "flies in the face of the statutory language."

Issues of business law don't come across as Sotomayor's great passion one way or the other, so it's hard to know what all this portends for the high court's direction on business issues should she be confirmed. . . .

Some of her backers say they expect that Sotomayor will emerge as a liberal in the less than fiery, relatively "legalistic" Ginsburg/Breyer mold. Even assuming that happens, some outcomes will soon change in a direction most businesses will find adverse.

AEI's Michael Greve expresses greater concern on NRO's Bench Memos.
Any Obama nominee was sure to be reliably liberal on high-salience "social" issues. Judge Sotomayor adds another qualification: She is among the most aggressively pro-plaintiff, anti-business appellate judges in the country. Her rulings in class actions, preemption cases, and other commercial matters are of a piece with her contempt for property rights (noted by Richard Epstein) and her anti-employer bias in discrimination cases (a matter of notoriety).
In addition to Knight and Dabit, another case that supports this view, and in which Sotomayor's approach was rejected by the Supreme Court, was Malesko v. Correctional Services, in which Judge Sotomayor adopted an expansive view of Bivens actions to find an implied cause of action for damages against a private company operating a halfway house under a contract with the federal Bureau of Prisons. Another case in which she was reversed for adopting a "anti-business" position was Entergy Corp. v. Riverkeeper, in which she had held that the EPA impermissibly considered cost-benefit analysis when setting a standard under the Clean Water Act.

It is difficult to draw definitive conclusions based upon a handful of cases. As one would expect, most of Judge Sotomayor's opinions are unremarkable and involve clear applications of applicable law and precedent; only a small fraction are even potentially controversial. Few of her decisions have been reviewed by the Supreme Court. Her record of reversal in such cases seems high, but is that significant? The Supreme Court reverses appellate courts more often than not, so the reversal rate, by itself, may nor mean all that much. Still, it is interesting that Judge Sotomayor has been reversed more than once for adopting an excessively permissive standard for suits by anti-corporate plaintiffs.

Does this mean a Justice Sotomayor would be "anti-business"? Not necessarily. This handful of cases is not necessarily representative of her overall approach. On the other hand, as a justice she will be less constrained by precedent and existing legal interpretations than as an appellate judge. So if Dabit and Malesko are indicative of her overall approach, she would be more free to advance this view once confirmed to the Supreme Court — and that would be something that would cause the business community some concern.

UPDATE: The ClassActionBlawg has two informative posts on Judge Sotomayor's record in class actions here and here.

Related Posts (on one page):

  1. What Should a Judge's Reversal Rate Be?
  2. Business and the Sotomayor Pick:

Meanwhile in Nunavut . . .

The AP reports

Canada's governor general ate a slaughtered seal's raw heart in a show of support to the country's seal hunters, a display that a European Union spokeswoman on Tuesday called "too bizarre to acknowledge."

Governor General Michaelle Jean, the representative of Britain's Queen Elizabeth II as Canada's head of state, gutted the seal and swallowed a slice of the mammal's organ late Monday after an EU vote earlier this month to impose a ban on seal products on grounds that the seal hunt is cruel.

And you thought Sarah Palin was tough.

Questions for Sonia Sotomayor:

GMU law prof Neomi Rao has a list of questions she thinks Senators on the Judiciary Committee should ask Sonia Sotomayor at her confirmation hearing.


Guess the Author of the following passage:
The judge's proper task is not mechanical. "History," Cardinal Newman reminded us, "is not a creed or a catechism, it gives lessons rather than rules." No body of doctrine is born fully developed. That is as true of constitutional law as it is of theology. The provisions of the Constitution state profound but simple and general ideas. The law laid down in those provisions gradually gains body, substance, doctrines, and distinctions as judges, equipped at first with only those ideas, are forced to confront new situations and changing circumstances.
Pick from the following list:
a) William Brennan
b) Sonia Sotomayor
c) Samuel Alito
d) Robert Bork
e) Laurence Tribe

Posner & Easterbrook in Action During Oral Argument on Incorporation of a Right to Arms: Circuit Court Judge Bauer expresses his enjoyment of Judges Posner and Easterbrook's roasting of Stephen Halbrook and Alan Gura's argument that the Seventh Circuit is not bound by Supreme Court precedent (Cruikshank & Presser) denying that the Second Amendment is applicable to the states because these decisions failed to consider whether the right to keep an bear arms is incorporated in the Due Process Clause of the Fourteenth Amendment. At the invitation of Judge Easterbrook, Gura eventually preserves his arguments on the merits and sits down. While Judge Easterbrook also expresses his view that the Slaughter-House Cases were wrongly decided, that and $2.25 will get you a ride on the CTA. For his part, Judge Posner manifests his general contempt for a constitutional right to arms--indeed he volunteers his view that states may constitutionally abolish the privilege of self-defense. He denies that there was any enthusiasm for gun rights in 1868, and seems completely unaware of the copious evidence that the Thirty-Ninth Congress was much concerned about protecting the individual right to keep and bear arms as a means for the freedman to protect themselves from violence. Here, for example, is the wording of the Freedman Bureau's Act:
And be it further enacted, That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.
So in this regard it is fortunate that Judge Posner will not be reaching the merits of the Fourteenth Amendment claim--just as it was fortuitous he was not on the DC Circuit to hear the Heller case. You can listen to the argument here.

Update: Link fixed (thanks to a reader).

Tuesday, May 26, 2009

Supreme Court Trivia Question: George H.W. Bush nominated both Sonia Sotomayor and the Justice she has been nominated to replace. Specifically, she was nominated to the trial bench by George H.W. Bush, and she has now been nominated to replace David Souter, who was himself nominated by George H.W. Bush (to both the First Circuit and the Supreme Court). So here's a question: When was the last time, before today, that a Supreme Court nominee had been nominated to a lower court by the same President that nominated the Justice who the nominee was replacing?

Why Last Year's California Pro-Gay Marriage Decision Remains a Net Positive for Gay Rights Even after Proposition 8:

Today's California supreme court decision upheld Proposition 8, a constitutional amendment that reversed that court's previous ruling holding that gay marriage was required by the state constitution. In previous posts (see here and here), I criticized the view that the success of Proposition 8 and similar initiatives in other states proves that pro-gay marriage court decisions set back the cause of gay rights more than they advance it.

It is now fairly clear that judicial rulings have helped the cause of gay marriage in the nation as a whole. But it's worth noting that the 2008 pro-gay marriage court decision was a net plus for gay rights even within California itself. After all, the court's decision upholding the validity of Proposition 8 also ruled that the 18,000 gay marriages that took place in California last year remain legally valid. That, of course, is 18,000 more gay marriages than would likely have occurred otherwise. Thirty-six thousand people who now can marry their partners of choice falls short of the ultimate objectives of the gay marriage movement. But it is nothing to sneeze at.

Even a pro-gay marriage decision that ultimately gets reversed can be a net benefit to the cause. That doesn't prove that the decision was legally correct. But it is a useful point to keep in mind in assessing the effectiveness of judicial power in promoting minority rights.

UPDATE: At Balkinization, Mary Dudziak and Andrew Koppelman also argue that the California struggle over same sex marriage remains a net plus for gay rights.


Federal challenge to Prop 8:

It's apparently been filed by David Boies and, interestingly, Bush SG Ted Olson:

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court “make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.”

I doubt Olson is right about the timing, but no doubt this ups the ante on any future Supreme Court vacancies for Obama. (There's already a challenge to the federal DOMA in the First Circuit.)

(HT: Chris Geidner.)

Related Posts (on one page):

  1. More on Ted Olson's federal lawsuit for gay marriage:
  2. Federal challenge to Prop 8:

The First Hispanic Justice:

Is there any evidence that choosing a Supreme Court nominee from a certain sex or race has any political impact? Jan Crawford Greenburg writes today, for instance:

President Obama had been “very interested” in her from the start, said one top adviser, and almost immediately, his political advisers--led by Chief of Staff Rahm Emanuel--urged him to make history by tapping the first Hispanic justice.

The selection of Sotomayor, they argued, would energize a key and growing constituency, which could well be disappointed in coming months by expected failures to get meaningful immigration reform.

Is there any evidence that Ronald Reagan gained any real electoral benefit by appointing Sandra Day O'Connor? Or what about all the black votes that George H.W. Bush picked up by appointing Clarence Thomas? The Italians for the appointment of the first Italian Justice, Antonin Scalia? Did the Republicans really lose political support because George W. Bush appointed two white males instead of appointing a woman to replace O'Connor?

I have to say, I just don't see it. Is there really a group of people out there who simultaneously (1) are well-enough informed and educated to follow the Supreme Court carefully and (2) would be impressed by the "diversity" of the candidate, as opposed to their judicial philosophy, ideology, or voting pattern on the Court? If so, who are these people?

Recall the effort by the Republican Party to rally Hispanics in outrage over the filibuster of Miguel Estrada:

Mr. Bendixen's poll found that 28 percent of Hispanics support the nomination, while 11 percent opposed it and 61 percent weren't aware of the nomination or didn't have an opinion.

He said that, based on listening to some of the poll interviews, it was clear many of those who supported Mr. Estrada were also confusing him with actor Erik Estrada, who was on the 1977-1983 television police drama "CHiPS" and is now a popular Spanish-language soap-opera star.

"Many of them think President Bush nominated Erik Estrada — I'd say a good third think that way," Mr. Bendixen said, adding that he heard one person say Mr. Estrada should be confirmed because he did such a good job playing a policeman on "CHiPS."

Republicans' own numbers confirm that most Hispanics aren't aware of the situation. A poll released last week of 800 Hispanics, taken by Alexandria-based Latino Opinions and not limited to registered voters, showed that just one-third were aware the Estrada nomination is pending and being blocked.

I recognize that the Supreme Court is higher-profile than the DC Circuit. But 2006 was probably the most high-profile year for the Supreme Court in recent memory, perhaps in history. Two appointments and the highly controversial nomination of Harriet Miers. Even then, a poll found that 57 percent of Americans could not name a single Supreme Court Justice. The poll also found:

The percentage of Americans who can name all nine current Supreme Court justices, statistically speaking, is zero.

The percentage of Americans who can name eight or more of the nine current Supreme Court justices also statistically rounds to zero.

Incorrect responses from those surveyed as to who is currently serving on the U.S. Supreme Court included George W. Bush, Hillary Clinton, Thurgood Marshall and Arnold Schwarzenegger.

I also recognize that I'm not the professional politician here. But these positions like Supreme Court and cabinet officials are really pretty obscure to most Americans. And those voters who can actually name these people largely seem to think it irrelevant to how they vote. So while the conventional wisdom is that there is a savvy political calculus here, I just don't see it.

Related Posts (on one page):

  1. Cardozo, Sotomayor, and "Hispanic":
  2. The First Hispanic Justice:

Sotomayor and Roberts on the Bench Together: Well, the moot court bench. Video here, from the 2006 GW Law Moot Court.

The right formerly known as the right to marry

is now "the constitutional right to establish, with the person of one's choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one's choice)." Strauss v. Horton, p. 35.

One of the most striking things (rhetorically, at least) about today's Prop 8 decision is the extent to which the court labors to minimize its decision just a year ago in In Re Marriage Cases. Recall that in Marriage Cases the underlying issue was not really whether the state was obliged to provide gay couples specific rights "incident to marriage" (e.g., intestacy rules, adoptions, powers of attorney, hospital-visitation rights). With trivial exceptions, as the court recognized, California's domestic partnership law had already done that. Instead, the petitioners sued to have their relationships recognized as "marriages," title and all, on the theory that anything different would violate the right to marry and embody a suspect classification.

Back then, the state supreme court repeatedly referred to the right "to marry" and to "marriage" as the main issue in a case styled, after all, Marriage Cases. The court explicitly rejected the state's last line of defense — that while gay couples might be entitled to all of the "incidents" of marriage the state could leave the designation of "marriage" to opposite-sex couples. Back then, the court warned darkly that denying the title of "marriage" to gay families risked second-class citizenship, harm to children, and loss of dignity:

[T]he exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples — while providing only a novel, alternative institution for same-sex couples — likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

Compare that to this passage in today's opinion:

Although the majority opinion in the Marriage Cases generally referred to this state constitutional right as the “constitutional right to marry,” at the same time that opinion explained that this constitutional right is distinct from the right to have one’s family relationship designated by the term “marriage.” (Id. at pp. 812, 830-831.)Because in common speech the term “right to marry” is most often used and understood to refer to an individual’s right to enter into the official relationship designated “marriage,” and in order to minimize potential confusion in the future, instead of referring to this aspect of the state constitutional rights of privacy and due process as “the constitutional right to marry,” hereafter in this opinion we shall refer to this constitutional right by the more general descriptive terminology used in the majority opinion in the Marriage Cases — namely, the constitutional right to establish, with the person of one’s choice, an officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage (or, more briefly, the constitutional right to establish an officially recognized family relationship with the person of one’s choice).

So marriage wasn't really the main issue in Marriage Cases, it was convenient shorthand. Elsewhere, the Strauss court tells us that Prop 8 has only a "limited" effect, carves a "limited exception" to the right to marry, changes the content of a right in "one specific subject area," diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important.

It's also a puzzle why the court feels the need to characterize Prop 8 as limited, since there's really nothing in the opinion to prevent a majority from repealing the state's domestic partnership law by constitutional amendment. (The court expressly and oddly leaves this issue open, see p. 93.) How would a repeal fundamentally alter the character of state government in the way the court understands that concept?

There's plenty of ground to question the decision in Marriage Cases, and to support today's decision in Strauss as correct on the revision/amendment distinction. And I think the protections provided to gay families under the rubric of "civil unions" or California "domestic partnerships" are a huge advance that can't fairly be likened to a new form of segregation. But it seems to me that, given the rationale and rhetoric of the first decision, the court disingenuously minimized the deprivation in the second.


Now and Then: Dahlia Lithwick, The Rational Hysterics, today:
Confirmation hearings are inevitably an invitation to behave badly. Something about the bright lights of the Senate judiciary committee brings out the worst in people. Legal thinkers who are otherwise reasonable and intelligent somehow become great big puddles of snarling, hateful id. I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings. And Republicans are poised to make the same mistake when they attack Obama's Supreme Court nominee, Sonia Sotomayor. . . .
Dahlia Lithwick, John Roberts' Woman Problem, August 19, 2005:
Score one for Bruce Reed. He picked up on what I completely missed this week: that the most telling aspect of Supreme Court nominee John Roberts' adolescence was not his staunch refusal to get high in the woods, but his contempt for all things female. . . .

Yesterday's info dump from the National Archives, raining down more than 38,000 pages of memos from Roberts' service as a legal adviser in the Reagan White House from 1982-86, suggests that Reed has the better of it. . . . What's truly is shocking is his dismissive tone, which seemed to surprise even ultraconservative Phyllis Schlafly, who described it yesterday as "smart alecky." Gender disparities are invariably "perceived" or "purported," in Roberts' eyes. Every effort to solve them is laughable. At a moment when serious inequities in women's wages, employment, and opportunities existed in this country, Roberts seemed to dismiss every attempt to remedy them as a knock-knock joke. . . . .

Does all this add up to John Roberts, woman-hater?

Elliot Mincberg, senior vice president of People for the American Way, told the Chicago Tribune today, "You do see a real clear lack of regard for—and even it could be argued, hostility toward—laws and theories and arguments that would promote equality for women in important ways." And Kim Gandy, president of NOW, fumed in the same paper: "I don't see Roberts' positions as conservative. ... I know a lot of conservatives who expect women to be paid fairly, who think women should become lawyers if they want to be lawyers. That is not a conservative position, that is a Neanderthal position. It's unfair to conservatives to call the positions he takes conservative."

The Sotomayor Pick: Jan Crawford Greenburg has a very interesting report on the road to the President's selection. Hat tip: How Appealing.

Forbes Columnists on Sotomayor:

Here are Richard Epstein's column (which Ilya already linked to), and one by Walter Olson (of


Obama Helping With Plans for Grassroots Health Care Parties.

Mark the date: June 6, 2009. David Plouffe, Obama's former campaign manager, sent me this email from announcing a grassroots Health Care campaign, sponsored by Organizing for America:

James --

Remember this date: Saturday, June 6th, 2009. We will look back on that day as the moment when the fight for real health care reform began in your neighborhood — perhaps even in your own living room.

On June 6th, in thousands of homes across the country, we'll gather to launch our grassroots campaign for health care. We'll watch a special message from the President. We'll build the teams and draw up the plans for winning health care reform the same way we won the election: Building support one block, one neighbor, one conversation at a time. And we'll put those plans into action.

These kickoffs are so crucial that President Obama will join confirmed hosts and attendees on a live conference call.

Sign up today to host or attend a Health Care Organizing Kickoff.

There's no prior experience required. We'll send you the details for dialing into the President's call and provide you everything you need to make your meeting a success.

After the election, people gathered at over 9,000 meetings across every state to set priorities for health care reform. Our voices were heard. Now the race is on to make sure Congress produces a plan that reflects the President's call for reduced costs, guaranteed choice, and quality care for all.

To make that happen, we need to build a groundswell of support in every district and every state, and we have no time to lose. All summer we'll be reaching out to our neighbors, knocking on doors, serving in our communities, and building a grassroots network strong enough to win.

These gatherings on June 6th are just the beginning of a battle between those who fought and believe in change and those who would protect a broken status quo. The stakes for our country could not be greater.

Some call this strategy pie-in-the-sky. They say we'll never have enough volunteers to make a real impact; that you need insiders and Washington lobbyists to make a difference. But you and I know firsthand how wrong they are. Starting June 6th, it's once again time to show this country how bottom-up change is done.

Please sign up today to host or attend a kickoff near you.

These kickoffs will be both effective and fun. You'll meet likeminded supporters in your neighborhood, share stories, enjoy good company and a shared mission, and know that no matter what this effort requires of us, if we work together we'll be ready to face it and persevere.

I look forward to joining you and the President to chart our course.

David Plouffe Organizing for America

P.S. — This week, President Obama asked us to send in our personal health care stories. Hundreds of thousands of people have already responded, and the stories are simply incredible. Here are just few that help remind us what we're fighting for:

I am a single parent and have lost my teaching job effective in June. I'm scared to death because my son has a serious pre-existing condition (Neurofibromatosis) and can't go without medical insurance. However, my employer has just informed me that continuing my family coverage under COBRA will cost $1,400.00 a month! That's a house payment for me. Or three times my car payment! How can I keep my family covered without going under financially?

--Cathy — Apple Valley, Minnesota

Since I lost my job in 2006, I have had no health insurance. After paying for insurance through my employer for 30 years, I have no major medical. But now that I am approaching 60, I may need insurance more than ever. I have not had a mammogram for three years because it would be too stressful to find anything suspicious. Risky but true.

--Kathy — Macon, Georgia

My husband isn't getting enough hours at his job to qualify for health insurance so we have been looking around for a provider. He has a pre-existing health condition (non-epileptic seizures) and he is being denied left and right. We don't make a lot of money, about $23,000/year and we can't afford to not have insurance, in case he needs to go to the doctor. And it looks like we can't afford to have it either. We are stuck.

--Amanda — Pasadena, California


Personally, I'd rather that President Obama were more of a Commander-in-Chief and less of a Community Organizer-in-Chief.

An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:

I don't think that laws that punish hate crimes — i.e., criminal acts motivated by the victim's race, religion, sexual orientation, and the like — are unconstitutional. I think the U.S. Supreme Court's unanimous decision in Wisconsin v. Mitchell gets this right, for the right reasons.

Nonetheless, the decision discussed below, in which a person pled guilty for sending racist messages to a city councilman and to the mayor about the city councilman, helps show a problem with such statutes, especially when they cover speech — even assertedly constitutionally unprotected speech (such as threats, fighting words, telephone harassment, and the like) — rather than violent conduct. Based on the quoted material, I'm pretty sure the messages should be constitutionally protected, and a thoughtful and well-reasoned decision by the U.S. Court of Appeals for the D.C. Circuit (U.S. v. Popa) supports that view. But according to the defense lawyer, the defendant pled guilty to a misdemeanor, and went to jail because of it, because raising the First Amendment challenge exposed him to a risk of felony hate crime prosecution, which could have led to a much higher penalty.

The Columbian (Vancouver, Wash.), reports in its May 20 issue, that "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges — which could have netted Reinhold more than a year in prison — his client decided to plead guilty." And an earlier article reported that, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said." Here, the threat of felony prosecution came from federal prosecutors, but it could equally well have come from state prosecutors under a felony hate crime statute.

Now I don't think this makes hate crime statutes unconstitutional, and this sort of pressure to plead guilty to a lesser charge and waive the right to appeal arises in all sorts of cases, not just cases such as this one. Nonetheless, this does highlight one way in which hate crimes laws can endanger free speech, even if this danger doesn't rise to the level of cause the laws to be unconstitutional. And it is one reason that (for instance) people who worry about suppression of constitutionally protected anti-homosexuality speech might be concerned about federal laws imposing harsher penalties for "hate crimes" based on sexual orientation, if those laws are broad enough to cover not just violence but also supposedly unprotected speech.

UPDATE ABOUT THE ORIGINAL POST IN THIS CHAIN (for those who are reading this one but continue to be interested in the original one): I should note that I assume the premise of the prosecution is that the black councilman was one of the recipients, which is what would make the e-mail even theoretically actionable as "cyberstalking." If the premise was that the defendant was sending offensive messages about a city councilman to other city councilmen, then the prosecution is even more outrageous. And I should acknowledge, on further thinking about this, that the state statute seems to allow such an unconstitutional result, because it provides (emphasis added),

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication [including e-mail] to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household....

Again, if the prosecution is premised solely on the messages to third parties then this is a frightening result: It is completely unmoored from the premise of normal telephone harassment law (which is troublesome enough as to government officials, as Popa discusses), and it takes the view that it's a crime to send anonymous messages to government officials about other government officials "with intent to harass, intimidate, torment, or embarrass" the subject.

Related Posts (on one page):

  1. An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:
  2. Jail Time for Sending Racist Message to a City Councilman:

Law Professors Opposing Supreme Court Nominations: In 2005, 160 law professors penned a letter to Senators Specter and Leahy stating their opposition to John Roberts' confirmation. The letter concluded, "On the existing record, we do not believe that Judge Roberts warrants a lifetime seat on our nation’s highest court, and we urge the Senate to withhold its consent to his confirmation."

  In 2006, over 500 law professors signed a similar letter opposing Samuel Alito's confirmation. It concluded, "Based on his fifteen-year record on the bench, we believe that Judge Alito would reshape the law in ways that make our country less equal and less free. We urge you to reject the nomination of Judge Alito nomination to the Supreme Court."

  Any guesses as to whether there will be a similar letter this time, and how many law professors will sign it?

Sotomayor--You CAN Say That!:

Given my interest in protecting the First Amendment from overzealous anti-discrimination rules, I was heartened to discover Judge Sotomayor's dissent in Pappas v. Giuliani. As Sotomayor summarized the majority opinion:

The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech - where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee's own time; where the employee's position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community.

I've argued that police departments should be allowed to fire beat cops who publicly engage in racist speech or behavior. But anonymous speech by an employee of the police department's Management Information Systems Division with no evidence of prejudice to the police department's reputation or functioning is a different story. Pappas's views on race relations were simply not relevant to his job qualifications, and firing him therefore violated the First Amendment.

Comments open for four hours.


Jail Time for Sending Racist Message to a City Councilman:

The Columbian (Vancouver, Wash.), reports in its May 20 issue:

[Christopher Reinhold] is serving an eight-day sentence in the Clark County Jail and will perform 20 days of community service [with the Battle Ground Cultural Diversity Task Force, which was formed in response to the incident] for sending racist e-mails last year about Battle Ground City Councilman Paul Zandamela....

Reinhold ... pleaded guilty March 30 to two counts of cyberstalking, a gross misdemeanor defined as using language meant to "harass, intimidate, torment or embarrass." ...

Zimmerman ... will also have to [pay $543 in fines and] attend two YWCA Eliminating Racism workshops and write a letter of apology to Zandamela....

According to court documents, Reinhold e-mailed a message Jan. 8, 2008, to city council members about Zandamela, a black man who was sworn in as a councilman the previous evening. "Our city government must be corrupt to have this (derogatory term) as an elected official," read the message in part. The message included four slurs and was signed, "Sincerely, a (derogatory term) hater." 'Anonymous, cowardly'

After Mayor Mike Ciraulo wrote back and told the council to ignore the message from "battleground anonymous," Ciraulo received a second message calling him a "stupid (derogatory term) lover." ...

What about the First Amendment? Well, first, "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges — which could have netted Reinhold more than a year in prison — his client decided to plead guilty." As reported in this earlier article, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said."

And, second, "'It's not free speech,' the judge said Monday. 'It's anonymous, it's cowardly, it's hateful and it was racist.'" What is that supposed to mean? There's no anonymous speech exception to the First Amendment, no cowardly speech exception, no hateful speech exception, and no racist speech exception. Perhaps this was quoted out of context, and the context somehow radically changes the judge's meaning. But if it was quoted in context, then the judge's rationale strikes me as very wrong.

Finally, for what strikes me as the much better view on the First Amendment issue, see U.S. v. Popa, the D.C. Circuit decision cited and briefly discussed in this earlier post.

UPDATE: I should note that I assume the premise of the prosecution is that Zandamela was one of the recipients, which is what would make the e-mail even theoretically actionable as "cyberstalking." If the premise was that the defendant was sending offensive messages about a city councilman to other city councilmen, then the prosecution is even more outrageous. And I should acknowledge, on further thinking about this, that the state statute seems to allow such an unconstitutional result, because it provides (emphasis added),

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication [including e-mail] to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household....

Again, if the prosecution is premised solely on the messages to third parties then this is a frightening result: It is completely unmoored from the premise of normal telephone harassment law (which is troublesome enough as to government officials, as Popa discusses), and it takes the view that it's a crime to send anonymous messages to government officials about other government officials "with intent to harass, intimidate, torment, or embarrass" the subject.

Related Posts (on one page):

  1. An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:
  2. Jail Time for Sending Racist Message to a City Councilman:

Final exam in California constitutional law:

Under the decision of the California Supreme Court in Strauss v. Horton, would the following change to the state constitution be an amendment or a revision?

Reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples of the same race, but leaving undisturbed all of the other extremely significant substantive aspects of an interracial couples’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

Assume, for purposes of your answer, that the state supreme court has previously declared that the right of interracial couples to marry, including the designation "marriage," is fundamental. Assume also that the court has declared racial classifications invidious and thus subject to strict judicial scrutiny.

In your answer, be sure to discuss whether the proposed change would have a substantial or, indeed, even minimal effect on the governmental plan or framework of California.

Do not consider whether the change would violate the federal constitution. Also, do not discuss whether the change would be wise or sound as a matter of policy or whether you, as an individual, believe it should be part of the California Constitution.

Finally, you may not consult Eugene's answer, below.


What If the Voters Overturn Other Constitutional Rights Decisions?

A common argument against the constitutionality of Prop. 8 was to hypothesize what would happen if voters overturn other constitutional rights decisions, or for that matter repeal expressly secured constitutional rights:

[U]nder the majority's view, it is not clear what sorts of state constitutional constraints limit the power of a majority of the electorate to discriminate against minorities. As petitioners point out, “imagine if Perez v. Sharp, 32 Cal.2d 711 (1948), striking down California's ban on interracial marriages, had been decided on state constitutional grounds rather than federal constitutional grounds. And imagine if a bare majority had attempted to overturn that landmark ruling by enshrining the ban into the Constitution.” Other equally unattractive hypotheticals suggest themselves. Under the majority's reasoning, California's voters could permissibly amend the state Constitution to limit Catholics' right to freely exercise their religious beliefs (Cal. Const., art. I, § 4), condition African-Americans' right to vote on their ownership of real property (id., § 22), or strip women of the right to enter into or pursue a business or profession ( id., § 8). While the federal Constitution would likely bar these initiatives, the California Constitution is intended to operate independently of (art. I, § 24), and in some cases more broadly than (see, e.g., Fashion Valley Mall v. National Labor Relations Board (2007) 42 Cal.4th 850, 857-858), its federal counterpart. The majority's holding essentially strips the state Constitution of its independent vitality in protecting the fundamental rights of suspect classes. And if the majority does not avow that such broad constitutional changes could be made by amendment, but only more “limited” ones, then I disagree with such an implicit distinction. As discussed, denying gays and lesbians the right to marry, by wrenching minority rights away from judicial protection and subjecting them instead to a majority vote, attacks the very core of the equal protection principle.

And these hypotheticals could likewise be raised not just as to the initiative amendment process, but also the legislative revision process, since one can imagine the same voters' electing enough legislators who would support those voters' preferences. (To be sure, that isn't politically likely, but neither are the other hypotheticals particularly likely; they certainly haven't been enacted in the past, even in times in which they might have been politically more plausible.) So Justice Moreno's argument can't easily be cabined in a way that would apply to the narrow question of what's an amendment and what's a revision -- it would equally cast into doubt (or not cast into doubt) the people's power to amend the constitution through legislative proposal or through a constitutional amendment.

But it seems to me the answer to this is clear: Those amendments would indeed be legally permissible changes to the California Constitution. (One might distinguish limitations on voting rights, on the grounds that they would entrench themselves, by stripping some people of the legal right to repeal those amendments; but wherever such a constitutional principle might or might not reside, that doesn't apply to same-sex marriage, or many other examples.)

They would be immoral. In extreme cases, they might constitute a sufficient moral justification for revolution (a matter I flag simply because the possibility can't be denied, and because of course our own U.S. Constitution is built in large part on a revolution against the existing order, plus likely a slightly later, peaceful and broadly accepted, coup against the existing order). They would violate the U.S. Constitution, and thus would be struck down on those grounds. But under the California Constitution, it seems to me that they should be understood simply as the sovereign changing the Constitution in a way that's very bad but that is consistent with that constitution.

In any event, what makes those provisions wrong is not that they are legally "revisions" rather than "amendments" and thus illegal. What makes them wrong is that they are morally wrong and thus immoral. But ultimately that judgment about what is morally wrong, as I mentioned, is under the California Constitution left to the sovereign people, and not the sovereign's servants in the state supreme court.


Justice Moreno's Partial Dissent:

Justice Moreno argues that Prop. 8 is a revision, not an amendment, and therefore must be implemented through a legislative proposal or a constitutional convention, and not by initiative. His rationale is that "a transfer of the authority to protect the equal rights of a suspect class away from the judiciary to an electoral majority" is a "kind of change in the countermajoritarian nature of the equal protection clause" that "is the type of fundamental alteration that can be done only through a constitutional revision." And his arguments rests heavily on tradition: the courts' "traditional constitutional function of protecting persecuted minorities from the majority will," equal protection being "one of the core values upon which our state Constitution is founded," "the guarantee of equal treatment hat has pervaded the California Constitution since 1849," and the like.

But the trouble is that what constitutes equal rights, equal protection, and equal treatment -- and on the other side, "persecut[ion]" of minorities rather than legitimately different treatment of different kinds of behavior -- is not self-defining. Up until 2008, the California Constitution had not been read as treating the opposite-sex-only marriage rule as unconstitutional. Up until the 1990s, no state constitution in America had been. Certainly the drafters of the California Constitution to whose handiwork Justice Moreno appeals did not believe that opposite-sex-only marriage rules are unconstitutional. They had a different view of what constitutes a denial of equal rights than does Justice Moreno. Likewise, the voters who enacted Prop. 8 have a different view from Justice Moreno, and a view that is more in common with the truly traditional understanding of the substantive scope of equal protection.

Justice Moreno does acknowledge "that the right of gays and lesbians to marry in this state has only lately been recognized. But that belated recognition does not make the protection of those rights less important. Rather, that the right has only recently been acknowledged reflects an age-old prejudice that makes the safeguarding of that right by the judiciary all the more critical." But again the judgment of what constitutes "prejudice" and what constitutes a legitimate basis for different treatment is precisely what the voters and the Justices disagree about.

Now in our constitutional tradition, the courts are indeed the final expositors of a constitution in the sense that they can strike state statutes down as unconstitutional. If the legislature disagrees with the courts, or if the voters enacting mere statutes disagree with the courts, then the courts' interpretation of the constitution prevails. (The initiative process in California, and in some other states, lets voters enact proposals as statutes if they so wish, and with lower petition thresholds than those required for constitutional amendments.)

But when the voters who are trying to amend the Constitution take a different view of the proper scope of constitutional principles -- even very important principles such as equality -- and a different view of the line between "persecution" and proper recognition of what they see as real differences, then it seems to me that the view of the sovereign (the people), not of the sovereign's servants (the Justices), should prevail. And though the Constitution prescribes that the will prevails only when it uses certain channels, and the channel of the initiative is usable only for "amendments" rather than "revisions," I see no basis for importing the Justices' personal views of "equality" and "persecution" into the amendment/revision line. (The majority expresses that well, I think.)

Talk of constitutional provisions' being deliberately "countermajoritarian" strikes me as unhelpful here. First, the Constitution itself is both a countermajoritarian document and a majoritarian one; the initiative amendment provision is itself a designedly majoritarian feature. Second, the countermajoritarianism is itself a feature of certain constitutional provisions, which are just as subject to constitutional amendment, it seems to me, as are the majoritarian provisions.

And third, the question in such matters is always which majority should prevail -- the majority of Justices on the state supreme court, or the majority of voters voting on the constitutional amendment. When the majority of the Justices are interpreting the state constitution in order to evaluate statutory provisions, they can appeal not just to their own majority view but to the authority of the Constitution. But when the majority of the Justices disagrees with the views of voters who are trying to amend that very same Constitution, such an appeal no longer works. All the Justices can say is that they are protecting the rights of the minority, but the whole point of the dispute is that there's disagreement about what those rights should be.

That's why I think the majority's view was correct here. The revision/amendment line is indeed part of the state constitution, and it should be enforced. But there's no justification for defining the line by reference to the judges' own views of what equality really means, when the majority of the voters who are trying to amendment the constitution disagrees with majority of the judges.


What Next for Same-Sex Marriage in California?

A few observations:

1. This decision is based solely on the California Constitution. Within the federal system, the California Supreme Court's view of the meaning of the California Constitution is final, and the U.S. Supreme Court has no jurisdiction to revisit it. So there can be no federal review of the question whether Prop. 8 violates the California Constitution.

2. Supporters of same-sex marriage rights can of course argue to the U.S. Supreme Court that the U.S. Constitution mandates recognition of same-sex marriage, in all states and under federal law. But it seems unlikely that the Court would accept such an argument at this point, and in any case this case is not a good vehicle for that, since the decision below was all about the California Constitution. (I'm not sure that federal constitutional arguments were even made by the challengers, but in any case they weren't considered by the Court.)

3. Supporters of same-sex marriage rights can also argue that the Full Faith and Credit Clause requires recognition of out-of-state same-sex marriages, both in California and elsewhere. I'm not an expert on the subject, but I my sense is that this argument will fail, at least before the current U.S. Supreme Court and probably also before many state and federal courts (at least ones that aren't willing to find a constitutional right to same-sex marriage in the first place).

4. Finally, supporters of same-sex marriage rights can also try to put on the ballot an amendment that would repeal Prop. 8, and would amend the California Constitution to actually recognize a right to same-sex marriage (or to authorize the normal legislative process to enact legislation recognizing such a right). My sense is that such a proposal will indeed soon pass, perhaps not in the next election cycle but likely within the next 10 to 15 years, if I'm reading social trends correctly.


A Much Better Sotomayor Property Rights Opinion:

In my previous post, I criticized Judge Sotomayor's flawed ruling property rights ruling in Didden v. Village of Port Chester. It is only fair that I point out that, in 2002, she wrote a much better opinion in another significant property rights case, Krimstock v. Kelly. In Krimstock, Sotomayor wrote an opinion invalidating New York City's policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding. The city had not yet initiated any civil forfeiture proceedings against them. Sotomayor correctly ruled that this policy violates the Due Process Clause of the Fourteenth Amendment, which mandates that citizens cannot be deprived of property without "due process of law." It may not be clear how much process is "due" in any given case under the Amendment. But seizure of property for up to several years at a time with no process at all is surely too little.

The Krimstock case is similar to the recent 7th Circuit decision in Alvarez v. Smith, which I blogged about in February. Krimstock may actually have been slightly less egregious because three of the owners of the vehicles in Alvarez had not even been charged with a crime, while the seven plaintiffs in Krimstock had pleaded guilty to the charge of driving while impaired (though forfeiture of property was not part of the legally mandated sentence for this offense). It's hard to dispute Sotomayor's conclusion that:

A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.

What does Krimstock say about Sotomayor's broader attitude towards constitutional property rights? I tend to doubt that it tells us very much. For reasons I elaborated more fully in my post on Alvarez, I think these cases are relatively easy. Surely holding onto valuable property for years at a time with no legal process at all is not "due process" under any defensible definition. However, the fact that the Supreme Court granted cert in Alvarez and may end up reversing it suggests that the state of protection for constitutional property rights is so bad that we can't take anything for granted. Therefore, Sotomayor does deserve some substantial credit for her opinion in this case. I do not believe that it fully outweighs what she did in Didden, however. In her time on the Second Circuit, Sotomayor ruled on two important property rights issues where the legal argument against the government was extremely strong. A 50% batting average in such situations is a lot better than 0%, but is still troubling.


Highly Dubious Claim against Sotomayor:

Something (to which I will not link) has appeared on the Internet, which purports to describe Sonia Sotomayor's work at Princeton:

Sotomayor is a graduate from Princeton University, where her legal theses included Race in the American Classroom, and Undying Injustice: American "Exceptionalism" and Permanent Bigotry, and Deadly Obsession: American Gun Culture. In this text, the student Sotomayor explained that the Second Amendment to the Constitution did not actually afford individual citizens the right to bear arms, but only duly conferred organizations, like the military. Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.
There is no reason to believe this is true. The purported source is "American News Inc." The link to this alleged news source is dead. In a quick Internet search, I found no such organization.

Further, the text of the article is self-refuting. An undergraduate at an Ivy League school, including Princeton, would write only one thesis. (Perhaps two if she were an exceptionally hard-working double major.) It would be unheard of for a student to write more than three, as the article claims she did. Nor would anyone who actually knew what a Princeton thesis was describe it as a "legal" thesis.

Moreover, Sotomayor was intelligent enough to graduate from Yale Law School Princeton Summa Cum Laude. It is inconceivable that someone of such intelligence (or even of modest intelligence) could have written a thesis asserting that the Second Amendment actually outlawed gun ownership outside of the militia.

Updated update: Commenters explain that Princeton students write two junior papers and one senior paper; only the latter is called a "thesis." Other commenters point out that her senior thesis was about the Puerto Rican politician Luis Munoz Marin. The blog which created this item has a small tag on the article which says "satire." Although all of the commenters on that blog seem to have taken the article seriously, as has every other cite to it on the web. People who want to read satire on the web would be better off with Iowahawk, which can be recognized as satire because it is sometimes funny.


Popular Sovereignty:

On my initial quick read, it seems to me that the California Supreme Court's cases (1) recognizing a right to same-sex marriage under the California Constitution, and (2) today, recognizing that Proposition 8 validly amended the Constitution and thus abrogated the right are excellent examples for any discussion -- in class or otherwise -- about popular sovereignty.

Three Justices reached a result different from the one that they had initially reached, based on their judgment that the people's views prevail over the Justices'. And they rebutted (in my view persuasively, but in any event clearly and informatively) the arguments to the contrary, both arguments focused on the revision vs. amendment question and arguments focused on the people's supposed legal inability to alter supposedly "fundamental" or "inalienable" rights. On the other side, there was able briefing to the contrary, plus Justice Moreno's partial dissent (which I've only skimmed at this point, though I'll read it later today). Put together, this seems to me a great case study of the recurring debates about popular sovereignty, constitutionalism, the role of courts, and more broadly the mixed majoritarian and antimajoritarian nature of American constitutions.


The California Supreme Court on Attorney General Jerry Brown's Arguments Against Prop. 8:

I again think the court's reasoning is quite correct (emphasis in original, some paragraph breaks added):

In his briefing before this court, the Attorney General agrees with our conclusions that Proposition 8 constitutes a constitutional amendment rather than a constitutional revision, and that the measure does not violate the separation of powers doctrine. The Attorney General, however, advances a novel, alternative theory under which he claims Proposition 8 should be held invalid. Relying largely on the circumstance that article I, section 1 of the California Constitution characterizes certain rights as “inalienable,” the Attorney General maintains that “Proposition 8 should be invalidated even if it is deemed to amend the Constitution because it abrogates fundamental rights protected by article I without a compelling interest.” ...

[But] the “inalienable” nature of a constitutional right never has been understood to preclude the adoption of a constitutional amendment that limits or restricts the scope or application of such a right. As noted above, from the beginnings of our state constitutional history, the right of the people “to alter or reform” the provisions of the Constitution itself has been understood to constitute one of the fundamental rights to which article I, section 1 refers, and California's 1849 Constitution enshrined this right as an integral part of the original Declaration of Rights in former article I, section 2, which provided: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.”

Indeed, the drafters of the 1849 Constitution, in their message submitting the proposed Constitution to the people of California, expressly described the people's right to alter or reform the Constitution as an “inalienable right.” In like manner, when the people's authority to propose and adopt constitutional amendments by initiative was added to the California Constitution in 1911, the constitutional provision spoke of the initiative “not as a right granted the people, but as a power reserved by them.”

Accordingly, there is no basis for suggesting that the inalienable rights set forth in article I, section 1, and the other provisions of the Declaration of Rights, are of a higher order than -- and thus exempt from -- the people's right to “alter or reform” the Constitution through either the legislative or the initiative constitutional amendment process. Indeed, a review of the current version of the constitutional provisions contained within article I's Declaration of Rights demonstrates that modification of such rights through the amendment process has occurred throughout our state's history.

In urging this court to confer upon the “inalienable rights” terminology of article I, section 1 a much more sweeping and far reaching meaning than it traditionally has borne, the Attorney General cites selected excerpts from a number of mid-19th-century opinions that gave voice to the natural-rights jurisprudence that was common in that era. As pointed out in the response filed by interveners, however, the expansive natural-rights jurisprudence of that time long has been discredited and, moreover, even the cited jurists never suggested that courts possess the authority to invalidate an explicit constitutional amendment, adopted through a constitutionally prescribed procedure, on the ground that the amendment is inconsistent with the scope of a right previously embodied in the Constitution. As discussed at length above, on numerous occasions in the past this court's interpretation of the fundamental constitutional protections accorded by the state Constitution to the “life and liberty” of those accused of crime has been modified by constitutional amendments proposed and adopted through the initiative process, and the constitutional validity of those amendments repeatedly has been sustained in our prior decisions. In short, the Attorney General's position finds no support in the governing California authorities.

In defending his argument, the Attorney General emphasizes that he “is duty bound to uphold the whole of the Constitution, not only the People's reservation of the initiative power, but also the People's expression of their will in the Constitution's Declaration of Rights.” When we examine the entirety of the California Constitution, however, we find nothing that exempts article I, section 1 -- or any other section of the Constitution -- from the amendment process set forth in article XVIII.... [W]e would exceed the well-established and time-honored limits of the judicial role were we to take it upon ourselves to fashion such a restriction upon the present and future right of the people to determine the content of the Constitution that governs our state.

[Footnote: As one legal commentator has explained: “To empower the courts not simply to review the procedures whereby amendments were adopted but also to void amendments on the basis of their substantive content would surely threaten the notion of a government founded on the consent of the governed.” (Viles, The Case Against Implicit Limits on the Constitutional Amending Process in Responding to Imperfection (Levinson edit.1995) 191, 198; see also Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role (1983) 97 Harv. L.Rev. 433, 442 [“allowing the judiciary to pass on the merits of constitutional amendments would unequivocally subordinate the amendment process to the legal system it is intended to override and would thus gravely threaten the integrity of the entire structure”].)]


Sotomayor's Troubling Property Rights Ruling in Didden v. Village of Port Chester:

University of Chicago and NYU law professor Richard Epstein points out that Judge Sotomayor was on a Second Circuit panel that issued the unsigned opinion in one of the worst property rights decisions in recent years, in the case of Didden v. Village of Port Chester. This does not bode well for her likely future rulings on property rights issues that come before the Supreme Court. In a 2007 National Law Journal op ed on Didden (no longer available on line, but excerpted here), Epstein and I discussed the facts of this disturbing case:

The U.S. Supreme Court's 2005 decision in Kelo v. City of New London generated a backlash on both sides of the political spectrum..... Many of the rear-guard defenders of this ill-conceived decision insisted that abusive condemnations are an aberration in an otherwise sound planning process. They, it turns out, were wrong. Didden v. Village of Port Chester, a most unfortunate decision out of the 2d U.S. Circuit Court of Appeals, helps demonstrate the shortcomings of their optimistic view.

In 1999, the village of Port Chester, N.Y., established a "redevelopment area" and gave its designated developer, Gregg Wasser, a virtual blank check to condemn property within it. In 2003, property owners Bart Didden and Dominick Bologna approached Wasser for permission to build a CVS pharmacy on land they own inside the zone. His response: Either pay me $800,000 or give me a 50% partnership interest in the CVS project. Wasser threatened to have the local government condemn the land if his demands weren't met. When the owners refused to oblige, their property was condemned the next day.

Didden and Bologna challenged the condemnation in federal court, on the grounds that it was not for a "public use," as the Fifth Amendment requires. Their view, quite simply, was that out-and-out extortion does not qualify as a public use. Nonetheless, the 2d Circuit . . . upheld this flexing of political muscle.

In fairness to Sotomayor and the other judges on the panel, their ruling was in part based on the Supreme Court's 2005 decision in Kelo v. City of New London, which defined "public use" extremely broadly. However, the majority opinion by Justice John Paul Stevens also emphasized that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." It is difficult to imagine a more clearly pretextual taking than this one, since Didden and Bologna's property would not have been condemned if it weren't for their refusal to pay Wasser the money he sought to extort from them. Wasser's plan for the property was to build a Walgreen's pharmacy on it, which is virtually identical to the previous owners' plan to build a CVS. There was no general public benefit that Wasser's plan would provide that would not have been equally well achieved by allowing Didden and Bologna to keep their property and carry out their plan to put a CVS there.

The Didden panel decided the case in part based on procedural grounds (claiming that Didden and Bologna filed their case too late). However, it also clearly rejected their public use argument on the merits (see pp. 3-4 of the Second Circuit's opinion, available in the appendix to the property owners' cert. petition). Sotomayor's endorsement of this ruling is a strong sign that she has little or no interest in protecting constitutional property rights. Her appointment is likely to exacerbate the second-class status of property rights in the Court's jurisprudence.

The fact that the Supreme Court refused to take the case is not much of a point in the ruling's favor. The Court accepts only a tiny fraction of all the cert petitions that come before it and refuses to hear many important cases. Moreover, the panel further reduced the chance of appellate review by leaving this important decision unpublished.

For more details on Didden, see this amicus brief urging the Supreme Court to review the case, which Epstein and I filed along with several other property scholars.


The California Supreme Court on Amendment vs. Revision:

Under the California Constitution, the initiative can be used for constitutional "amendments" but not constitutional "revisions"; see this post for more, including the constitutional text that strongly suggests this. Here's the California Supreme Court's explanation for why Prop. 8 is a constitutionally permissible "amendment" and not an impermissible "revision" (all emphases in original):

“[O]ur analysis in determining whether a particular constitutional enactment is a revision or an amendment must be both quantitative and qualitative in nature. For example, an enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, the parties herein appear to agree that an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.” ...

From a quantitative standpoint, it is obvious that Proposition 8 does not amount to a constitutional revision. The measure adds one 14-word section to article I -- a section that affects two other sections of article I by creating an exception to the privacy, due process, and equal protection clauses contained in those two sections as interpreted in the majority opinion in the Marriage Cases. Quantitatively, Proposition 8 unquestionably has much less of an effect on the preexisting state constitutional scheme than virtually any of the previous constitutional changes that our past decisions have found to constitute amendments rather than revisions....

[As to the qualitiative prong of the amendment/revision analysis,] the numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes “far reaching changes in the nature of our basic governmental plan,” or, stated in slightly different terms, that “substantially alter[s] the basic governmental framework set forth in our Constitution.” ... Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution -- that is, “in [the government's] fundamental structure or the foundational powers of its branches.” ...

Again, strikes me as quite correct.


From the California Supreme Court's Prop. 8 Decision:

Strikes me as exactly right:

[N]o authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates “inalienable.” The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General has been discredited for many years, and, in any event, no decision suggests that when a constitution has been explicitly amended to modify a constitutional right (including a right identified in the Constitution as “inalienable”), the amendment may be found unconstitutional on the ground that it conflicts with some implicit or extraconstitutional limitation that is to be framed and enforced by the judiciary. Although the amending provisions of a constitution can expressly place some subjects or portions of the constitution off-limits to the amending process — as already noted, some state constitutions contain just such explicit limits — the California Constitution contains no such restraints. This court would radically depart from the well-established limits of the judicial function were it to engraft such a restriction onto the Constitution in the absence of an explicit constitutional provision limiting the amendment power....

In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it. If the process for amending the Constitution is to be restricted — perhaps in the manner it was explicitly limited in an earlier version of our state Constitution, or as limited in the present-day constitutions of some of our sister states — this is an effort that the people themselves may undertake through the process of amending their Constitution in order to impose further limitations upon their own power of initiative.

The California Supreme Court justified its earlier decision recognizing same-sex marriages by reference to the California Constitution, which in turns draws its authority from having been enacted by the people. Whether that decision was or wasn't a sound interpretation of the California Constitution, an interpretation of the California Constitution is what it purported to be.

The constitutional provisions that the people enacted the people may likewise lawfully amend. Perhaps the amendment may be morally wrong, but it is legally authoritative (unless it violates some superior legal rule, such as the U.S. Constitution, but recall that the debate in this case has been about rights supposedly secured by the California Constitution).

More on the amendment/revision question, I hope, as I read further.


Justice Cardozo as "Hispanic" or "Latino":

The discussion prompts me to reprise a couple of items I posted in the very first month of this blog on the subject:

1. Note Justice Cardozo's Hispanic surname, a traditional way of testing Hispanic status; actually, I think the name is Portuguese, but if it's good enough for the U.S. government, it's good enough for me: Title 49, section 26.5 of the Code of Federal Regulations (the definition that's used in the contracting race preference programs administered by the Department of Transportation) defines "Hispanic Americans" as

persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race.

There's no doubt, to my knowledge, that Cardozo was indeed of Spanish or Portuguese origin; in fact, a recent biography describes the shaping experiences of Cardozo;s youth as including participation in a leading Spanish-Portuguese cultural organization. True, his family probably left the Iberian Peninsula over 350 years before his birth, but that's true of many Hispanics as well. And he likely had no American Indian blood, but that's true of many Hispanics, too.

At the same time, I can certainly understand both why many Hispanics would be enthusiastic about having a Hispanic appointed to the Court, and why they wouldn't count Cardozo as one of them: Ethnicity tends to be defined in practice by felt cultural bonds, and not by Code of Federal Regulations definitions.

2. My friend Tom Waldman asked whether Cardozo might not qualify as Latino (as opposed to Ladino, I take it).

But that presupposes a definition of Latino that's different from Hispanic, and that would exclude Cardozo; I don't think there really is that settled a definition. I could find no such definition in the Code of Federal Regulations. The closest I could find is a definition of "Hispanic or Latino" in 45 CFR 1355 app. A, which likewise turns on whether a person "is of Mexican, Puerto Rican, Cuban, Central or South American origin, or a person of other Spanish cultural origin regardless of race" — this might exclude Cardozo because I suspect he's of Portuguese cultural origin, but that would be a really funny way of defining Latino. After all, the Portuguese might be seen as not Hispanic, but surely they're just as Latino as the Spaniards. (UPDATE: Justin Miller points out: "Brazilians mostly speak Portuguese (the country was Portugal's main South American colony) and it's easily the most-populated country in South America. It would be hard then to neglect Brazilians' status as Latinos. If Brazilians are counted as Latinos, why not then those from Portugal itself? Language seems to be a central tenant of identifying Latino ethnicity and I think this simple case makes it pretty clear Cardozo was the first Latino justice.")

My New Shorter Oxford does define Latino as "A Latin American inhabitant of the United States," which would indeed exclude Cardozo — but would equally exclude all Americans of merely Spanish, as opposed to Latin American, extraction. This might be a sensible definition, but it's not the one in the Code of Federal Regulations.

Though, wait! What about Antonin Scalia, a Justice some of whose ancestors might have actually come from Latium itself? Yes, I know, etymology doesn't equal meaning; but it's still fun to play with this.

3. So the bottom line: There's no doubt that many Hispanics might see Judge Sotomayor as one of them in a way that they don't see Justice Cardozo as one of them. There's nothing "incorrect" about that; it's a matter of felt shared identity, which is defined by actual practices and not by scientific or often even legal definitions. But if one does look at legal attempts to try to capture Hispanic identity as a legal category, Justice Cardozo might well have qualified (which may say more about the weakness of such legal attempts than about anything else).


Not a First: A reader asks:
With all the talk of her being the first Hispanic Justice, I find this question more interesting:

Would Judge Sotomayor be the first judge to climb the ladder from federal district judge to federal circuit judge to US Supreme Court Justice?
Nope. Charles E. Whittaker did it first: He was on the district bench from 1954 to 1956, the 8th Circuit from 1956 to 1957, and then was on the Supreme Court from 1957 to 1962.

More on Sotomayor and the Second Amendment: Although I would guess that Sonia Sotomayor is not a big fan of Second Amendment protections, I think my co-blogger Dave Kopel is reading too much into Maloney v. Cuomo. Kopel writes that the judges in that case
seriously misconstrue the Second Amendment itself, when they write: "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution. The Second Amendment protects but does not create that pre-existing right.
  I'm puzzled by the idea that merely using the word "confer" is somehow a "serious" misreading of DC v. Heller, given that it is the exact word that the Heller decision twice uses to state what the Second Amendment does. From Scalia's majority opinion, 128 S.Ct. 2783 at 2799:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.
And at page 2814:
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”).
The additional fact that Maloney v. Cuomo is a per curiam decision, and thus may not have been written by Sotomayor at all, suggests to me that David is reading too much into the decision for insight into Sotomayor's views on the Second Amendment.

California Prop. 8 Upheld, But Held Not To Affect Existing Same-Sex Marriages:

So reports the San Francisco Chronicle, reporting that the decision is 6-1. (Thanks to How Appealing for the pointer.) I can't access the opinion right now at the California Supreme Court site, presumably because of high traffic, but I hope to comment on it as soon as I read it. UPDATE: Got the opinion now, thanks to Chris Geidner; hope to blog about it soon.

In the meantime, good advice for the pro-same-sex-marriage forces from Chris Geidner (LawDork):

All weekend, Twitter and the blogosphere have been abuzz with the Day of Decision rallies planned across California and the nation. Its organizers, who include Robin Tyler and Andy Thayer, state: “[I]f the court rules against us, make sure that our angry voices are heard around the nation. Anger at denying an entire group of people our civil rights is perfectly legitimate and appropriate.”

This reasoning is incomplete, misguided and horribly short-sighted, and it is my hope that marriage equality leaders like Evan Wolfson, Mary Bonauto and Andrew Sullivan would concur.

First, this is not a ruling about whether marriage equality is correct or just. This is a ruling about whether the California Constitution allows a measure like Proposition 8 to be voted into the Constitution by the people. Even if there is some overriding federal claim that marriage equality is guaranteed by the U.S. Constitution, it was not raised by the parties here....

Third, and most simply, this is not the righteous anger exhibited this past fall. This decision is likely to be a complex one turning one the intricacies of California constitutional law, as well as its common law history and principles of equity. That is not protest-worthy, however, so the decision will have to be simplified to the point of being unrecognizable in order to provide the tinder sought by the organizers to light the fire of protest in their attendees’ spirits....


Sonia Sotomayor versus the Second Amendment:

Maloney v. Cuomo is a 2009 per curiam opinion of the Second Circuit, upholding New York State's complete ban on the possession of nunchaku. New York is the only state in the nation with such an extreme ban.

In the opinion by Judges Pooler, Sotomayor, and Katzmann, the per curiam judges first cite Presser v. Illinois (1886) for the proposition that the Second Amendment directly applies only to the federal government, and not to the states. They also cite a more recent Second Circuit case which relies on Presser, for the same proposition. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005).

In this regard, Judges Sotomayor et al. are plainly correct. However, they seriously misconstrue the Second Amendment itself, when they write: "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution. The Second Amendment protects but does not create that pre-existing right. As the Heller Court detailed, the fact that the right to arms is pre-constitutional is elaborated in the 1875 Supreme Court case, United States v. Cruikshank.

[UPDATE: Oren's post, above, accurately points out that Heller itself uses the word "confer", so even though the word is inconsistent with Heller's own explication of the right to arms as a pre-existing right, the Maloney opinion can't be faulted for using the same word.]

Presser did not discuss whether the Due Process clause of the 14th Amendment makes the Second Amendment enforceable against the states. Indeed, Presser could not have discussed the question, since the doctrine of incorporation via the Due Process clause was not invented until later. The Sotomayor per curiam opinion ignores Due Process incorporation, even though any serious analysis of whether the Fourteenth Amendment makes the Second Amendment enforceable against the states would have to address the issue. However, Maloney's pro se brief in the case never raised selective Due Process incorporation, but only addressed the Fourteenth Amendment in the context of unenumerated fundamental rights (Meyer v. Nebraska, Griswold v. Connecticut, etc.).

The Sotomayor per curiam opinion addressed the Fourteenth Amendment by quoting a previous Second Circuit decision: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The opinion then went on to find a rational basis, since nunchaku had sometimes been used by criminals.

In other words, the Second Amendment is not "a fundamental right." The Sotomayor panel could have offered a legal explanation for why (in the panel's opinion) nunchaku are not "arms" within the meaning of the Second Amendment, and therefore a mere rational basis test for nunchaku bans is appropriate. But the Sotomayor court did not do so. To the contrary, the Sotomayor per curiam opinion treats any Second Amendment claim as not involving "a fundamental right."

The Maloney opinion is, on this issue, entirely consistent with Judge Sotomayor's opinion in a 2004 case: "the right to possess a gun is clearly not a fundamental right." United States v. Sanchez-Villar, 99 Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order of Judges Sack, Sotomayor & Kaplan), judgement vacated, Sanchez-Villar v. United States, 544 U.S. 1029 (2005)(for further consideration in light of the 2005 Booker decision on sentencing).

Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.


Supreme Court Overrules Michigan v. Jackson: With everyone thinking about the Supreme Court of the future this morning, I want to point out that there is also a current Court that is still in session. Yes, it's true! Indeed, today's Court handed down a big decision today in the criminal procedure area: In Montejo v. Louisiana, the Supreme Court overruled Michigan v. Jackson, a Miranda decision that has long been a controversial case. The vote was a predictable 5-4. There's lots to talk about with Montejo, although with all the Sotomayor news, it's not clear how much attention it will receive in the legal blogosphere. I'll try to have some commentary on it soon.

Some Sotomayor Stats: If I'm not mistaken, she would be the third Yale Law grad of the nine Justices on the Court; the sixth Catholic; the ninth former court of appeals Judge; and the first Second Circuit judge to get the nod since Thurgood Marshall in 1967.

Initial Thoughts on the Sotomayor Pick: Two initial thoughts on the Sotomayor pick.

  First, it's not a big surprise: Sotomayor has long been thought to be a possible Supreme Court pick for a Democratic President. Indeed, a quick google search pulls up some of the stories of how GOP Senators tried to slow down her nomination to the Second Circuit in 1997-98 precisely because she would be a logical pick to the Supreme Court someday. For example, here's Neil Lewis in the New York Times on June 13, 1998:
  Judge Sonia Sotomayor seemed like a trouble-free choice when President Clinton nominated her to an appeals court post a year ago. Hers was an appealing story: a child from the Bronx housing projects who went on to graduate summa cum laude from Princeton and become editor of the Yale Law Journal and then a Federal prosecutor.
  Moreover, she had been a trial judge since 1992, when she was named to the bench by the last Republican president, George Bush.
  But Republican senators have been blocking Judge Sotomayor's elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews.
(To be clear, both parties play this game when they smell a potential SCOTUS nominee; I point out the 1998 story just to point out that Sotomayor was always known as a possible pick.)

  Second, at this point I would think Sotomayor is very likely to be confirmed. I don't know a ton about Sotomayor, but her resume hints at someone who is sort of like a liberal mirror image of Samuel Alito: the humble kid who goes to Princeton and Yale Law, becomes a prosecutor, and then gets appointed at a young age to the federal bench and puts in 15 years as a respected (if not particularly high profile) federal judge. In some ways, that makes Sotomayor a pretty conservative pick: Her resume is the kind of very accomplished resume that Supreme Court picks have tended to have in the last two decades or so. Given the make-up of the Senate, and the absence of surprise, I would imagine at this point that Sotomayor is very likely to be confirmed.

Would Sotomayor be the First Hispanic Justice?

It's possible that the answer to this question is "no." Justice Benjamin Cardozo was a descendant of Spanish or Portuguese Jews who immigrated to America, and took great pride in his Sephardic Jewish identity. For details, see Andrew Kaufman's excellent biography of Cardozo.

That said, ethnic identity is largely a social construct. So I can understand if Hispanics today take special pride in Sotomayor's appointment because she would be the first justice whose parents were recent arrivals from Latin America. Like many racial or ethnic classifications, "Hispanic" is a somewhat arbitrary label. It includes widely divergent groups such as Brazilians and Mexicans, while sometimes being used in a way that excludes Spanish and Portuguese immigrants and their descendants (including Cardozo). That does not mean, however, that the term is completely incoherent. US Hispanics do have a distinct identity of sorts - even if only because American society has historically defined them as such over the last several decades.


The Sotomayor Pick:

I am not yet sure what position to take on President Obama's selection of Sonia Sotomayor. My general sense is that she is very liberal, and thus likely to take what I consider to be mistaken positions on many major constitutional law issues. I am also not favorably impressed with her notorious statement 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." Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins. Stuart Taylor's comments on Sotomayor's speech are telling:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life" — and had proceeded to speak of "inherent physiological or cultural differences."

Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who rejects the view that "judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law" and instead believes that we should embrace the fact that "our gender and national origins may and will make a difference in our judging."

On the plus side, Sotomayor does meet the minimal professional qualifications for nomination to the Supreme Court. Her ten years of solid service on the Second Circuit Court of Appeals ensures that. At the same time, her record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee's qualifications are likely better than Harriet Miers' were; but Miers' nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor's. That said, Supreme Court appointments are almost never purely merit based. Sotomayor joins a long line of nominees who were chosen in part because of political, ethnic, or gender considerations. It would probably be wrong to oppose her on that ground alone.

Finally, this may be a good time to remind readers that I have long argued that judicial philosophy and ideology are legitimate considerations for senators to take account of in deciding whether or not to oppose a Supreme Court nominee. Unlike some on the right, I took that view during the Bush Administration, and I hold the same position today. On that point, I agree with Barack Obama, who opposed John Roberts' nomination based on his judicial philosophy despite conceding that "[t]here is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge." Obama was, in my view, wrong in his specific objections to Roberts, but absolutely right in concluding that judicial philosophy should be considered in addition to professional qualifications when assessing judicial nominees.

UPDATE: Some commenters understandably question whether Sotomayor's credentials are really worse than Alito's were. Both of them spent comparable amounts of time as judges on a circuit court, and both had similar educational credentials at elite institutions. In addition, this post by Eric Posner (relying on methodology developed in this article by Stephen Choi and Mitu Gulati), shows that Alito's opinions and Sotomayor's have similar citation counts.

Nonetheless, I think that Alito's record is on the whole better than Sotomayor's was. In their composite ranking of federal circuit court judges (incorporating measures of quantity of output, quality, and "independence"), Choi and Gulati ranked Alito 16th out of 98 judges included in the study. Sotomayor was not included for technical reasons, but Eric reports that she would have ranked in "the bottom half." Eric cites data showing that Sotomayor's opinions are cited slightly more frequently than Alito's in court decisions and law reviews. But that difference is almost surely due to the fact that Second Circuit opinions are generally cited more frequently than Third Circuit ones (in large part because the Second Circuit includes New York City, which is the nation's most important center for commercial litigation and many types of white collar criminal litigation). I also base my view in part on a qualitative judgement. For years prior to his appointment, I often heard legal scholars and other experts describe Alito as one of the top conservative circuit court judges. Prior to her appointment, I rarely if ever heard Sotomayor described as one of the top liberal ones.

I may have been wrong in suggesting that Alito's preappointment record was "far" more impressive than Sotomayor's. But I still do think that he had a significant edge. That said, I reiterate my view that Sotomayor's credentials are good enough that she should not be rejected on qualifications grounds. The real objection to her is based on judicial philosophy.

UPDATE #2: It should be noted that Sotomayor put "I would hope that" immediately prior to her statement that a "wise Latina" judge would generally make better decisions than a white male one. I don't think that the "I would hope" materially changes anything in a context where it's pretty clear that she thinks that the hope is justified. After all, the statement comes in a paragraph criticizing Justice Sandra Day O'Connor's reputed view that "a wise old man and wise old woman will reach the same conclusion in deciding cases." Sotomayor's comment would not be a meaningful criticism of O'Connor's unless Sotomayor thought that the wise Latina judge really was likely to do better than a white male "more often than not."

UPDATE #3: In a more recent post (published several days after this one), Eric Posner presents new data showing that Sotomayor's recent record stacks up well against Alito's by various quantitative measures. I won't go into the details here, but on balance I think that Eric's conclusion is correct. Therefore, it can no longer be said that the quantitative data show that Alito had a "substantial edge" over Sotomayor. As I stated in the original post, my reservations about Sotomayor are primarily focused on her judicial philosophy and decisions rather than on competence. Even so, it's important to recognize that new evidence reveals that my original judgment that her record was less impressive than Alito's was probably wrong.


"Hispanics" and Sotomayor:

Tom Goldstein:

To Hispanics, the nomination would be an absolutely historic landmark. It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.

I'm genuinely curious about how this will play out. I know "Hispanics" are a census category, an affirmative action category, a politically correct category, the target of common mass marketing in Spanish-language and other media, and, to some extent the target of undifferentiated discrimination, especially for those who "look" Hispanic.

On the other hand, "Hispanic" includes everyone with Spanish or Portuguese speaking ancestors, and I wonder how much pride, say, Mexican-Americans in California or Central Americans in the Northern Virginia suburbs take in the success of a Puerto Rican woman from the Bronx. One can imagine satisfaction that a fellow "Hispanic" is being nominated to the Supreme Court, but one can also imagine resentment that the first "Hispanic" nominee to the Court is from a relatively small demographic group, Puerto Ricans who live in the mainland, and not from by far the largest group of Hispanics, Mexican Americans.

I guess this is another way of asking whether there is really a common identity of Hispanic among descendants of Spanish speakers in the U.S., or whether they primarily think of themselves as Mexican, Cuban, Colombian, Salvadoran, etc., the way people of European descent considered themselves German, Italian, Irish, etc., not "European." And if the latter, whether there is still enough of a common identity that it's good politics to nominate a "Hispanic," even from a relatively small (and overwhelmingly Democratic) group.

Comments open for four hours.


Obama Chooses Sonia Sotomayor.

Cable news networks are reporting that President Obama has chosen to nominate Sonia Sotomayor for the US Supreme Court.

I hope to learn more about Sotomayor before expressing a strong personal opinion on the choice, but my initial impresion is this: Compared to recent nominees, Sotomayor is a far more distinguished choice than was Harriet Miers (whom I opposed), but a less distinguished choice than John Roberts — and probably Samuel Alito as well.

I expect Sotomayor to be confirmed, but without too much enthusuasm, except in a few pockets of the Democratic coalition.

Tips for Very Simple Machine-Making for 6-Year-Olds?

My near-6-year-old is wild about building what he calls "machines" out of Legos, blocks, boxes, and everything else. I thought it would be fun if he could build some actual machines as well as the imaginary ones. Lego's Mindstorms robots look fun, but they are said to be for age 9 and above, and I'm not sure whether my boy (let's call him "Ben" for convenience) will have the attention span to enjoy them, even with my help. And while I'd be happy to do the programming, with him watching and (I hope) learning, I thought he might enjoy something that he could quickly do entirely by himself, at least as an option.

Any suggestions? Any experience you folks have had yourself with your 6- or 7-year-olds? Many thanks!


Monday, May 25, 2009

WWII registry:

Both of my grandfathers served, one in Europe and one in the Pacific. They lived with that war their entire lives but, like so many others, rarely talked about it. The National WWII Memorial has created a database to preserve the names and experiences of those who helped win the war, both in uniform and on the home front. You can find or register an honoree here.

The Case for Kagan?

Charlie Savage shrewdly asks whether President Obama might prefer a nominee who will defer to executive power—Kagan over Wood and Sotomayor, given the limited evidence. Surely yes. Obama has adopted, or at least implicitly relied on, aggressive theories of presidential power both for his national security policies and his economic program. The Senate’s repudiation of his plan to move Guantanamo detainees to the mainland elicits the nightmare vision of a president ground between the gears of a Congress that blocks his moderate tactics and a Court that blocks his aggressive tactics. The administration’s actions in the financial crisis rest almost entirely on executive decree. Legal challenges that have begun as a trickle will soon flood the courts, and threaten, some time down the line, enormous costs for the government. From the perspective of the White House, other considerations must pale.


Remember the "L": Number of times the phrase "pubic policy" has appeared in federal court decisions included in the Westlaw ALLFEDS database: 29. Number of times the phrase has appeared in law reviews included in the Westlaw JLR database: 129.

"Obama's Supreme Court nominee expected this week": That's what Reuters is reporting, with the AP adding that Obama's pick could be announced as early as tomorrow. TheHill chimes in, "Given [Obama's] schedule this week -- including a trip to Las Vegas and Los Angeles on Tuesday and Wednesday -- speculation is that the president could make public his choice early Thursday or Friday."

  As always, stay tuned to the VC for lots of nominations-blogging when the pick is announced.

The Impact of Judicial Power on Gay Marriage Revisited:

Legal scholars such as Jeffrey Rosen and Gerald Rosenberg have argued that judicial decisions striking down state bans on gay marriage have ultimately set back the cause of gay equality by stimulating an anti-gay marriage political backlash. Back in November, I wrote a post criticizing this view, noting that judicial decisions have led to much faster adoption of gay marriage than would have occurred otherwise. Since November, three more states - Iowa, Maine, and Vermont, have legalized gay marriage and New Hampshire is likely to do so soon, despite some delays. Three of those four states (all but Iowa) have adopted gay marriage through the legislative process (or almost done so, in the case of NH), which suggests that the power of the anti-gay marriage backlash is waning.

These developments provide additional support for my argument that judicial review has been a net plus for the gay marriage movement. It is unlikely that either these four states or the two that adopted gay marriage earlier would have done so as quickly were it not for the momentum generated by the Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state. Until that point, gay marriage seemed a very distant prospect in virtually every state, even the more liberal ones.

Rosen, Rosenberg, and others point out that the post-Goodridge backlash led to the enactment of anti-gay marriage state constitutional amendments in some 30 states. However, as I explained in my November post, these states did not have gay marriage previously and were unlikely to enact it anytime soon. When and if public opinion in those states shifts in favor of gay marriage, the state constitutional amendments banning it will not be much of an obstacle. Most of the state constitutions in question are relatively easy to amend (which is one of the reasons why gay marriage opponents were able to push through their own amendments so quickly after 2003). Meanwhile, six states now have gay marriage, which is probably six more than would have had it at this point in the absence of the Massachusetts decision. A seventh state, California, would have gay marriage now as well, if not for a very narrow referendum defeat in November.

To say that pro-gay marriage judicial review has been effective in advancing cause of gay rights is not to say that it was legally correct. I myself have serious doubts about the legal justifications for some of the state pro-gay marriage rulings. It also doesn't mean that judicial review is so powerful that judges can get away with doing anything they want. Obviously, the pro-gay marriage judicial decisions would not have occurred were it not for the general liberalization of societal attitudes towards gays over the last several decades. By 2003, the majority of the public wasn't yet ready to support gay marriage; but they were much less hostile to it than even a decade earlier. And elite opinion was even more favorable. Judges do not operate in a vacuum, and their power is limited by political constraints. Even so, it is now increasingly clear that judicial intervention has been a major net benefit for the cause of gay rights.


Memorial Day:

Happy Memorial Day to all our readers who are veterans or current members of the armed forces! We hope you realize that your sacrifices are known and appreciated.

History of Memorial Day: Learn about it here.

Sunday, May 24, 2009

Obama Elaborates on "Empathy," What He Wants in a Supreme Court Nominee: The transcript of his Friday C-SPAN interview is here, and this is the part about the Supreme Court, continued below the jump:
STEVE SCULLY, POLITICAL EDITOR, C-SPAN: Mr. President, as we speak to you in the White House Library, a constitutional lawyer, former law professor, as you work through the process for you personally in selecting the Supreme Court nominee, what are you thinking?

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Well, there are some benchmarks that you have to make sure that you hit. Obviously, you want somebody who is highly qualified, who knows the law. I want somebody who, obviously, has a clear sense of our constitution and its history and is committed to fidelity to the law.

Is going to make their decisions based on the law that's in front of them, but as I've said before, I think it's also important that this is somebody who has common sense and somebody who has a sense of how American society works and how the American people live.

And you know, I said earlier, that I thought empathy wasn't important quality and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you.

But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living. And a good example of this, the Lilly Ledbetter case that came up a while back, where the justice has I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way. And so, when they're interpreting a statute that they are saying, is congressional intent being met in this kind of circumstance. So, if there is a farm program somewhere, and you have somebody who can take the time to learn about how farmers work that's helpful.

So, in all these cases what I want is not just ivory tower learning. I want somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world works.

  Notably, Obama seems to use "empathy" in different ways here, and in ways that appear (to me at least) to be somewhat different than his earlier uses. At various points in the interview, Obama suggests that empathy means just having an accurate understanding of the world. At other times, he seems to suggest it means being a pragmatist in the sense of interpreting the law to avoid bizarre results. Last I checked, though, no one believes that misunderstanding the world is a good thing, and even Justices like Scalia have a strong pragmatic streak. If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality. Maybe the idea is someone who is a purposivist rather than a textualist when it comes to statutory interpretation? I'm not sure.