In my last commentary entitled Philosophical and Life Experiences in the Shaping of Supreme Court Views, which I distributed on July 21, I concluded with the comment, “Next time I will discuss the much-maligned Ricci (aka the firemen’s) case.
This case needs discussion because it is the one case out of the hundreds that came before Judge Sotomayor in the years that she was on the bench that most raised the ire of her critics.
These critics were the ones who screamed that empathy had no place in the law, that decisions must be based on the law and only the law. They then turned around and attacked the decision in the Ricci case by citing the poor dyslectic firefighter who having bought all the books and studied extra hard did not get his promotion, even though he scored high enough on the test to be entitled to it. Without question we can have empathy for this firefighter. But what about the law? Did all these strident voices, who loudly denounced the concept of empathy, once discuss the law? Anybody who followed the debate knows that the law was the last thing they were interested in. See here.
But let us look what in fact happened. I assume that at least some are interested in some degree of consistency and in examining the facts. It has no bearing on the confirmation of Judge Sotomayor for she will be confirmed. But if we are to have any kind of intelligent discourse about the law we need to step back and examine the real facts.
The strident voices have denounced Sotomayor for her decision. But, of course it wasn’t her decision. It was a decision of a three-judge panel of the Court of Appeals and it was unanimous. Three judges all reached the same conclusion. If we count the decision of the District Court it makes it four judges. After the panel handed down the decision a petition was filed for the whole Court of Appeals to hear the case known as a “rehearing en banc.” According to Rule 35 of the Court “A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” There are a total of 12 active judges on the Court. So when the hearing en banc was denied it meant that at least 6 judges decided it did not warrant such a rehearing. Thus we can see that a total of at least 10 judges did not feel the decision was wrong. Doesn’t that suggest that at the very least there was a basis in the law for the decision? What is the law that the court was interpreting? It was Title VII of the Civil Rights Act of 1964. For the text of the act click here. But to listen to the braying one wouldn’t even have known that there was a law passed by the elected Congress that the court was interpreting. That this law provides in Section K 1A: “An unlawful employment practice based on disparate impact is established under this subchapter only if-
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity…”
Ever since that law was passed a test which has a disparate impact on race must be discarded unless it can be shown that the questions asked are “job related for the position in question and consistent with business necessity;…”
Apparently the District Court, which is the trier of the facts, found it had not been demonstrated that many of the questions on the test were job related. It then surveyed the law and in an opinion 48 pages long analyzed the facts and the law, cited and reviewed at least 19 previous decisions, including prior Supreme Court decisions, and decided the examination violated the statute. For those few who may actually want to read all the decisions cross references can be found here.
Now the critics of Judge Sotomayor argue that judges who are reversed by the Supreme Court should not be elevated to the High Court, ignoring of course that this would eliminate most, if not all, judges sitting on our courts. Furthermore, The Supreme Court decision was by its common 5-4 majority that chose to ignore its own precedents and changed the law, as it has existed since the passage of the statute.
I will grant that we can argue the wisdom of the statute; we can argue the wisdom of the policy, but to suggest that Sotomayor or the three judge panel which adopted the opinion of the district court as being sound on all counts, is in some way not applying the law, is nothing less than deliberate distortion, sophistry and demagogy.
The dishonesty of Judge Sotomayor's critics is apparent. And what makes the attacks even more deplorable is that one of her severest critics was Senator Sessions of Alabama, who was rejected by the Senate when Reagan nominated him for a district court in Alabama, because he was a known racist. According to the Huffington Post he “once quipped that he ‘used to think [the KKK] were OK’ until he found out some of them were ‘pot smokers;’ and he routinely referred to an African-American attorney who worked for him as ‘boy’ -- even once warning that attorney to ‘be careful what you say to white folks’ after Sessions overheard him chastising a white secretary.”
This is typical of the crowd that tries to represent itself as being in favor of a non-racist society.
Wednesday, July 29, 2009
Tuesday, July 21, 2009
Philosophical And Life Experiences In The Shaping Of Supreme Court Views
In my last commentqry entitled, “Judges Do More Than ‘Call Balls And Strikes’” which I posted on my blog July 13, I pointed out the complexity of dealing with vague language in the Constitution and also pointed out that the concept of originalism is nothing but obfuscation, and that in reality no judge follows such a doctrine nor could they do so, without bringing our whole system of government to its knees.
I do not, however want to give the impression that it follows that any of the judges, be they Right or Left, and there is no longer a true center, simply make up the law to suit their own predilections. Thus in my essay, entitled, “The Supreme Court - Consequences As New Appointees Shift Its Balance” which I wrote in October of 2005 and which can be found in full here, I quoted a number of Justices on the subject of deciding cases in ways which as a matter of policy they disapproved of, e.g. Justice Stevens, in referring to some conclusions he had reached, explained that he believed that as a matter of policy that the outcomes were: "unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator…”
But that does not mean that judges are not influenced in reaching their conclusion by their political philosophy and their background.
The Ledbetter case, which involved interpretation of a law passed by Congress rather than the Constitution is a case in point. The law provided that women may not be paid less than men for equal work.
After working for Goodyear for almost 20 years Lilly Ledbetter was by far the lowest-paid employee in her position. She proved that this disparity was due to sex discrimination, and a federal district court in Alabama found Goodyear liable. On appeal, Goodyear countered it hadn't discriminated against Ledbetter—recently. (Emphasis added) Title VII, of the federal law requires suit to be filed within 180 days "after the alleged unlawful employment practice occurred." In essence, Goodyear argued that the discriminatory decision it made about Ledbetter's pay were made long ago and that since pay raises were a percentage of previous pay, the pay discrepancy kept getting larger and larger. But they argued that except for the first deliberate discriminatory act, the later smaller raises were not the result of any gender discrimination, but simply the result of the much earlier act. Ledbetter's low salary might have merely reflected her earlier, discriminatorily low pay, rather than more recent pay increases.
The Supreme Court in a 5 to 4 decision held that the suit was not filed within the required 180 days and dismissed the suit. The decision turned on the interpretation of the meaning of “unlawful employment practice.” The minority of four held that the intent is not controlling-it is the effect of the decision that controls, and since later smaller pay increases had the effect of sex discrimination, the suit was filed in time. Jeffrey Toobin in his book on the Supreme Court, “The Nine” points out at page. 330 that “for years, the court said that if a women sued within 180 days of her last offending paycheck,” she is entitled to recover for the entire period. But now with a change in the courts personnel the view was different. Alito had replaced O’Connor. Fortunately, since this involved an act of Congress, that body was able to amend the law to make its meaning so clear that even the Supreme Court could no longer misunderstand its intent.
Now I don’t suggest that the Right wing justices did not intend to follow the law, but their philosophy, their backgrounds, were not sympathetic to the objective of the law passed by Congress, and so they interpreted it narrowly. The four liberal justices, and the departed O’Connor, showed their sympathy by interpreting it broadly. They all felt that they had the correct interpretation, but they could not and cannot escape their biases, or their background. In the end it is what instructs them.
The same is true in interpreting the Constitution. In interpreting Roe v. Wade the court had set a standard (actually O’Connor had) that a law restricting abortions must not place an undue burden on women. Pennsylvania had passed a law putting various restrictions on the right of a woman to an abortion including one that she must notify her husband before having one. Alito, then on the Court of Appeals, dissented from the majority on the court finding this to be a reasonable burden. When the case reached the Supreme Court in Planned Parenthood v. Casey, O’Connor was livid over Alito’s view. Not only was such a requirement an undue burden under Roe, but it violated the Equal Protection Clause of the Constitution. The fact that she was a woman clearly was not an insignificant factor in her strong reaction. She declared, “Women do not lose their Constitutional protected liberty when they marry.”
If we look at the decisions it becomes obvious that judges who hold a high regard for the protection from unreasonable searches and seizures will find more situations as unreasonable than those who don’t; those who put a high value on free speech will interpret that broadly, while those who hold the right to use ones wealth to influence elections will have a view that reflects this world view.
It is for that reason that the court functions best when it has on it justices with different backgrounds and philosophies. A woman often will see things differently from a man. Someone who has had to struggle may see things differently from one who was born with a silver spoon in their mouth.
For that reason Shell Haas and Gary Schwartz had it wrong when they wrote in the Suburbanite a few weeks ago that ethnicity (and presumable gender) has no place in choosing a justice for the court. Did they or their predecessors in this type of thinking express a concern when during the first 178 years of the court every justice was a white man. We did not have a justice of another color until 1967 and did not have a woman until 1981. No one wants to bar white men from serving on the court, but it is strange that people object at the idea that at this late date we might want to see some with other backgrounds and experiences, such as Justice Marshal, or Justice O’Connor who upon graduating from law school was offered a job as a secretary in a law firm. Even now, until Justice Souter resigned, we had seven white men out of nine on the court. Do Haas and Schwarz think that these seven white men had some special qualification that those of another ethnicity, gender, or race do not possess?
I reproduce the letters from Haas and Schwartz below:
Next time I will discuss the much-maligned Ricci (aka the firemen’s) case.
I do not, however want to give the impression that it follows that any of the judges, be they Right or Left, and there is no longer a true center, simply make up the law to suit their own predilections. Thus in my essay, entitled, “The Supreme Court - Consequences As New Appointees Shift Its Balance” which I wrote in October of 2005 and which can be found in full here, I quoted a number of Justices on the subject of deciding cases in ways which as a matter of policy they disapproved of, e.g. Justice Stevens, in referring to some conclusions he had reached, explained that he believed that as a matter of policy that the outcomes were: "unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator…”
But that does not mean that judges are not influenced in reaching their conclusion by their political philosophy and their background.
The Ledbetter case, which involved interpretation of a law passed by Congress rather than the Constitution is a case in point. The law provided that women may not be paid less than men for equal work.
After working for Goodyear for almost 20 years Lilly Ledbetter was by far the lowest-paid employee in her position. She proved that this disparity was due to sex discrimination, and a federal district court in Alabama found Goodyear liable. On appeal, Goodyear countered it hadn't discriminated against Ledbetter—recently. (Emphasis added) Title VII, of the federal law requires suit to be filed within 180 days "after the alleged unlawful employment practice occurred." In essence, Goodyear argued that the discriminatory decision it made about Ledbetter's pay were made long ago and that since pay raises were a percentage of previous pay, the pay discrepancy kept getting larger and larger. But they argued that except for the first deliberate discriminatory act, the later smaller raises were not the result of any gender discrimination, but simply the result of the much earlier act. Ledbetter's low salary might have merely reflected her earlier, discriminatorily low pay, rather than more recent pay increases.
The Supreme Court in a 5 to 4 decision held that the suit was not filed within the required 180 days and dismissed the suit. The decision turned on the interpretation of the meaning of “unlawful employment practice.” The minority of four held that the intent is not controlling-it is the effect of the decision that controls, and since later smaller pay increases had the effect of sex discrimination, the suit was filed in time. Jeffrey Toobin in his book on the Supreme Court, “The Nine” points out at page. 330 that “for years, the court said that if a women sued within 180 days of her last offending paycheck,” she is entitled to recover for the entire period. But now with a change in the courts personnel the view was different. Alito had replaced O’Connor. Fortunately, since this involved an act of Congress, that body was able to amend the law to make its meaning so clear that even the Supreme Court could no longer misunderstand its intent.
Now I don’t suggest that the Right wing justices did not intend to follow the law, but their philosophy, their backgrounds, were not sympathetic to the objective of the law passed by Congress, and so they interpreted it narrowly. The four liberal justices, and the departed O’Connor, showed their sympathy by interpreting it broadly. They all felt that they had the correct interpretation, but they could not and cannot escape their biases, or their background. In the end it is what instructs them.
The same is true in interpreting the Constitution. In interpreting Roe v. Wade the court had set a standard (actually O’Connor had) that a law restricting abortions must not place an undue burden on women. Pennsylvania had passed a law putting various restrictions on the right of a woman to an abortion including one that she must notify her husband before having one. Alito, then on the Court of Appeals, dissented from the majority on the court finding this to be a reasonable burden. When the case reached the Supreme Court in Planned Parenthood v. Casey, O’Connor was livid over Alito’s view. Not only was such a requirement an undue burden under Roe, but it violated the Equal Protection Clause of the Constitution. The fact that she was a woman clearly was not an insignificant factor in her strong reaction. She declared, “Women do not lose their Constitutional protected liberty when they marry.”
If we look at the decisions it becomes obvious that judges who hold a high regard for the protection from unreasonable searches and seizures will find more situations as unreasonable than those who don’t; those who put a high value on free speech will interpret that broadly, while those who hold the right to use ones wealth to influence elections will have a view that reflects this world view.
It is for that reason that the court functions best when it has on it justices with different backgrounds and philosophies. A woman often will see things differently from a man. Someone who has had to struggle may see things differently from one who was born with a silver spoon in their mouth.
For that reason Shell Haas and Gary Schwartz had it wrong when they wrote in the Suburbanite a few weeks ago that ethnicity (and presumable gender) has no place in choosing a justice for the court. Did they or their predecessors in this type of thinking express a concern when during the first 178 years of the court every justice was a white man. We did not have a justice of another color until 1967 and did not have a woman until 1981. No one wants to bar white men from serving on the court, but it is strange that people object at the idea that at this late date we might want to see some with other backgrounds and experiences, such as Justice Marshal, or Justice O’Connor who upon graduating from law school was offered a job as a secretary in a law firm. Even now, until Justice Souter resigned, we had seven white men out of nine on the court. Do Haas and Schwarz think that these seven white men had some special qualification that those of another ethnicity, gender, or race do not possess?
I reproduce the letters from Haas and Schwartz below:
"To the Editor:
In the editorial “ Supreme Court nomination is a win for all” there was no mention of judicial qualifications. With decisions overturned, Ms. Sotomayor’s really does not exemplify the cream of the crop of potential candidates. She is not the first Hispanic to be named for the court. The Honorable Justice Cardozo has that distinction. It is wonderful to pursue the American dream, but as Martin Luther King Jr. put it, it is by the content of their character, not by the color of their skin. He should have added “not by their ethnicity either.” No one is excluded by society in America today, except those individuals and groups that desire not to be included. We must think of ourselves as Americans, not hyphenated Americans. America has always had ethnic diversity, but that diversity merged with the willingness to subvert that pride to a greater pride- that of being an American.
Shel Haas
"To the Editor:
A Supreme Court nomination is win for all. I wonder, forgive me but somehow I believe it’s wrong to pick a judge because of ethnic background. I mean Justice (whatever that is) should be blind. Race and religion that should be irrelevant for a judge. No, I think judges should be judged on their judgement, nothing else. And of course, it’s important for people to believe Judges are fair and race card muddies up that perception.
Gary Schwartz"
Next time I will discuss the much-maligned Ricci (aka the firemen’s) case.
Monday, July 13, 2009
Obfuscation regarding Supreme Court Decisions
In my commentary, which I distributed on May 28. 2009 and posted on my blog the following day, I said I was taking some time off from writing about current events in order to attend to personal matters. I have not succeeded in cleaning up my backlog but events in the public sphere are calling out to me, and I cannot remain silent any longer.
Some time ago I said that I wished in my writings to destroy myths. Some of these are becoming evident in the discussion leading up the vote on the confirmation of Judge Sotomayor and rather than allow them to fester and become part of the lore I feel that I should address them.
There are many, but one that particularly offends me is the notion promulgated by Justice Roberts in his confirmation hearing is that a Supreme Court Judge simply “calls balls and strikes.” This implies that the rules are crystal clear and the Judges need merely apply them. In this scenario Right Wing judges apply the law and liberal judges or “activist judges” make law to suit their predilections.
Let us test this against the real world. For example the Fifth Amendment to the Constitution provides: “The right of the people to be secure … against unreasonable searches and seizures, shall not be violated …” What is reasonable and what is not” is hardly a matter of calling balls and strikes.
Or the First amendment provides: Congress shall make no law… abridging the freedom of speech…” (Emphasis added) Shall this be taken literally? In 1919 the Supreme Court in Schenk v. U.S. made it clear that this language can not be taken literally when Justice Holmes set forth the famous example, “that this amendment could not prevent laws that “protect a man falsely shouting fire in a theater and causing a panic” which all would agree with, but used the analogy to allow a law which made it illegal “to distribute flyers opposing the draft during World War I” a holding which has since been overruled by Brandenburg v. Ohio, which held that speech can only be proscribed if it is likely to incite imminent lawless action (e.g. a riot). It also is not crystal clear what free speech is. Is it limited to speech actually spoken or does it include symbolic speech? The difficulty in finding the right line can immediately be seen and it is not like calling balls and strikes. Thus Justice Roberts, when he made this claim was either being naïve or disingenuous and I don’t think he was or is naïve.
Another recent example of the difficulty in interpreting this Constitutional provision came before the court when it held in Texas v. Johnson, 491 U.S. 397 (1989) that burning of the American flag can not be criminalized because it is symbolic speech. Justice Scalia, generally considered part of the Right wing of the court, joined the liberal four justices in this holding.
Thus the claim or myth that interpreting the Constitution is an exercise in the obvious is nothing less than part of the Right wing’s desire to obfuscate. The worldview of any given justice will influence their decision and the Right Wing of the court has no monopoly on seeing the correct meaning of provisions that are ambiguous.
But “calling balls and strikes” is not the only deliberate misrepresentation of those who follow a particular philosophy. They have also developed the theory of “originalism” to give credence to their own unique view of the meaning of all things. They claim that what they are doing is sticking to the Constitutions meaning as its meaning was intended at the time it was written. But again this is nothing more than obfuscation by the Right Wing, or conservative judges, as they like to call themselves, for they strike down laws passed by elected legislatures with more frequency than the liberal judges, (See here) which aside from marking them as activists, strikes down their claim to be originalists, for when the Constitution was written, there was no provision giving the Court the power to declare any acts unconstitutional. To quote a favorite refrain of the Right, “where is the provision for this?”
As a matter of fact during the early days of the Republic there was a general assumption that what was constitutional was in the first instance the responsibility of Congress and secondly that of the President. George Washington in fact felt that the most important, if not the only reason for vetoing a bill, was that it was unconstitutional. It was not until Marbury v. Madison decided in 1803 that the Supreme Court laid claim to this authority, saying, “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” Logical, but drastically new, and not an example of originalism. Thus to lay a legitimate claim to originalism the Right members of the court would have to renounce the claim to strike down acts of an elected legislature. The liberal members, not burden with the claim to originalism have a right to strike down laws, but they use it with restraint while the Right asserts that power over and over.
But the power to strike down laws are not the only things that the Right finds in the Constitution that are not explicitly there. The Constitution does not explicitly provide for the power of the government to set up the Federal Reserve, or the FDA. There is nothing in the Constitution that specifically says corporations shall have the same rights as real people including all the protections to freedom of speech and due process but the “originalists” manage to see things that aren’t in the original constitution when it is in line with their philosophy. Their claim to originalism or even to strict constructionism has no basis in their actual rulings and it is a concept that long ago would have made the Constitution obsolete.
For a more extensive discussion of the of the rulings of the Supreme Court and what might have happened if Bush had been able to make one more appointment, see here and for a discussion of the debate on judicial nominations in 2005 see here.
But it isn’t only the Constitution where the “conservative” judges of the Supreme Court show their biases. It is also in interpreting the laws of Congress. Next time I will discuss the Ledbetter case which involved no constitutional issue and was concerned with interpreting an Act of Congress.
Some time ago I said that I wished in my writings to destroy myths. Some of these are becoming evident in the discussion leading up the vote on the confirmation of Judge Sotomayor and rather than allow them to fester and become part of the lore I feel that I should address them.
There are many, but one that particularly offends me is the notion promulgated by Justice Roberts in his confirmation hearing is that a Supreme Court Judge simply “calls balls and strikes.” This implies that the rules are crystal clear and the Judges need merely apply them. In this scenario Right Wing judges apply the law and liberal judges or “activist judges” make law to suit their predilections.
Let us test this against the real world. For example the Fifth Amendment to the Constitution provides: “The right of the people to be secure … against unreasonable searches and seizures, shall not be violated …” What is reasonable and what is not” is hardly a matter of calling balls and strikes.
Or the First amendment provides: Congress shall make no law… abridging the freedom of speech…” (Emphasis added) Shall this be taken literally? In 1919 the Supreme Court in Schenk v. U.S. made it clear that this language can not be taken literally when Justice Holmes set forth the famous example, “that this amendment could not prevent laws that “protect a man falsely shouting fire in a theater and causing a panic” which all would agree with, but used the analogy to allow a law which made it illegal “to distribute flyers opposing the draft during World War I” a holding which has since been overruled by Brandenburg v. Ohio, which held that speech can only be proscribed if it is likely to incite imminent lawless action (e.g. a riot). It also is not crystal clear what free speech is. Is it limited to speech actually spoken or does it include symbolic speech? The difficulty in finding the right line can immediately be seen and it is not like calling balls and strikes. Thus Justice Roberts, when he made this claim was either being naïve or disingenuous and I don’t think he was or is naïve.
Another recent example of the difficulty in interpreting this Constitutional provision came before the court when it held in Texas v. Johnson, 491 U.S. 397 (1989) that burning of the American flag can not be criminalized because it is symbolic speech. Justice Scalia, generally considered part of the Right wing of the court, joined the liberal four justices in this holding.
Thus the claim or myth that interpreting the Constitution is an exercise in the obvious is nothing less than part of the Right wing’s desire to obfuscate. The worldview of any given justice will influence their decision and the Right Wing of the court has no monopoly on seeing the correct meaning of provisions that are ambiguous.
But “calling balls and strikes” is not the only deliberate misrepresentation of those who follow a particular philosophy. They have also developed the theory of “originalism” to give credence to their own unique view of the meaning of all things. They claim that what they are doing is sticking to the Constitutions meaning as its meaning was intended at the time it was written. But again this is nothing more than obfuscation by the Right Wing, or conservative judges, as they like to call themselves, for they strike down laws passed by elected legislatures with more frequency than the liberal judges, (See here) which aside from marking them as activists, strikes down their claim to be originalists, for when the Constitution was written, there was no provision giving the Court the power to declare any acts unconstitutional. To quote a favorite refrain of the Right, “where is the provision for this?”
As a matter of fact during the early days of the Republic there was a general assumption that what was constitutional was in the first instance the responsibility of Congress and secondly that of the President. George Washington in fact felt that the most important, if not the only reason for vetoing a bill, was that it was unconstitutional. It was not until Marbury v. Madison decided in 1803 that the Supreme Court laid claim to this authority, saying, “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” Logical, but drastically new, and not an example of originalism. Thus to lay a legitimate claim to originalism the Right members of the court would have to renounce the claim to strike down acts of an elected legislature. The liberal members, not burden with the claim to originalism have a right to strike down laws, but they use it with restraint while the Right asserts that power over and over.
But the power to strike down laws are not the only things that the Right finds in the Constitution that are not explicitly there. The Constitution does not explicitly provide for the power of the government to set up the Federal Reserve, or the FDA. There is nothing in the Constitution that specifically says corporations shall have the same rights as real people including all the protections to freedom of speech and due process but the “originalists” manage to see things that aren’t in the original constitution when it is in line with their philosophy. Their claim to originalism or even to strict constructionism has no basis in their actual rulings and it is a concept that long ago would have made the Constitution obsolete.
For a more extensive discussion of the of the rulings of the Supreme Court and what might have happened if Bush had been able to make one more appointment, see here and for a discussion of the debate on judicial nominations in 2005 see here.
But it isn’t only the Constitution where the “conservative” judges of the Supreme Court show their biases. It is also in interpreting the laws of Congress. Next time I will discuss the Ledbetter case which involved no constitutional issue and was concerned with interpreting an Act of Congress.
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