Here is a link to a recent opinion piece I wrote about restoring legitimacy to the Supreme Court.
Here is a link to a recent opinion piece I wrote about restoring legitimacy to the Supreme Court.
Halloween is my second favorite holiday (after April Fools’ Day). In prior years, I have dressed as the standard of review “abuse of discretion” and the exception to but-for causation for “multiple sufficient causes.” Can you guess my costume this year?
Crim Pro Midterm
The Federal Bureau of Investigation (FBI) received an anonymous letter that a judge currently serving on the federal court of appeals in Cincinnati took a large bribe from the writer of the letter. According to the letter, the judge, Karl Kaspian, used to live in a small home and now lives in a mansion and wears fancy jewelry. FBI agents checked housing records and noticed that Judge Kaspian had recently moved from a modest neighborhood to a wealthy gated community. An undercover agent sat in the Judge’s courtroom and noticed his wearing a fancy watch and ring. After the day’s court proceedings were over, the FBI agent observed, and seized, a diamond ring that Judge Kaspian had dropped on the floor on his way out of the courthouse.
Four FBI agents then surrounded Judge Kaspian inside the parking garage of the federal courthouse in Cincinnati. The agents’ guns were visible in their holsters, but they kept enough distance so Judge Kaspian could get to his car. The agents asked Judge Kaspian if they could search his car, and the Judge said yes. Inside the car, the agents found records of many bribes Judge Kaspian had taken. At his trial for corruption, Judge Kaspian seeks to exclude (1) the diamond ring and (2) the evidence from his car. What is the likely result?
Three academics looking to emulate scholars in the fields they describe as “grievance studies” (gender studies, critical race studies, fat studies) pulled off a stunning hoax. These academics managed to publish several papers in serious academic journals even though the papers made absurd claims based on unsound methodologies. One published article, for example, was about rape culture in dog parks, and another – which was ultimately not published but received favorable reviews – suggested chaining up and silencing white students in order for the white students to “experience reparations.” What the papers had in common was that they confirmed the worldviews and aims of the journals – in particular, the papers sought to elevate the voices of those with less power in order to dismantle power structures.
Reasonable minds can differ on whether Judge Kavanaugh sexually assaulted Dr. Christine Blasey Ford. Perhaps Judge Kavanaugh is lying, or perhaps he does not remember the incident. Perhaps Dr. Ford is lying, or incorrectly remembers either the identity of the assailant or the severity of the interaction. These events happened over three decades ago, and there is little evidence besides the directly contradictory testimony of both parties, both of whom have significant inconsistencies in their accounts.
Reasonable minds can also differ on whether Judge Kavanaugh displayed such intemperate and partisan behavior that he forsook his duty to appear impartial. Personally, I am more concerned by what may be lies under oath than his understandable anger, but I appreciate those who believe his confirmation would further erode the legitimacy of the judiciary.
Where I think we reached unreasonable levels is in our projection of all of our perceived social ills onto Judge Kavanaugh. Many have assumed that if we confirm Judge Kavanaugh, their own stories of trauma and abuse will be erased. Perhaps this was so when the Senate refused to pause even for an FBI investigation of the allegations of Dr. Ford, but it is not true now. Judge Kavanaugh did not assault us all, and he is an individual who deserves individual consideration. Assuming his anger is entitlement because he is male, or promoting the idea that we should automatically believe all women who charge others with sexual misconduct, simply because so many women are telling the truth, is a recipe for abandonment of our most cherished principles.
I was reasonably satisfied with Judge Kavanaugh’s nomination to the Supreme Court. I thought he was a smart, fair jurist. Although I did not agree with all of his lower court decisions, I appreciate that evaluating a judge based on whether I agree with his ultimate outcomes, as opposed to the strength and coherence of his legal reasoning, is detrimental to rule of law principles.
The mixed reactions, on many aspects of the way we approach Dr. Blasey Ford’s allegations against Judge Brett Kavanaugh, track either politics or ideology in a way that should give every one of us pause.
At one end of the spectrum is Senator Mazie Hirono, who told men to “shut up and step up … do the right thing, for a change,” after Dr. Chrstine Blasey Ford’s allegations against Judge Brett Kavanaugh came to light. Blasey Ford released her story weeks after her allegations had been sent to Senator Dianne Feinstein, and days after the Senate finished its hearings on whether to confirm Judge Kavanaugh to the Supreme Court. Senator Hirono’s view is that, despite the impossibility of gathering meaningful statistics on how many reports of sexual assault are false, a woman is automatically to be believed regardless of evidence, and men, by virtue of their membership in a particular group, are all guilty by association and cannot contribute to meaningful dialog on this topic.
At the other end of the spectrum is Senator Mitch McConell, who wants to “plow through” with Judge Kavanaugh’s confirmation despite a credible accusation of sexual assault, who appears to categorize Dr. Blasey Ford’s coming forward as a partisan tactic to delay Judge Kavanaugh’s confirmation vote until after the midterm elections, who sees no need for further investigation on this topic. And, of course, there’s Donald Trump, who essentially called Dr. Blasey Ford a liar for failing to report her allegations 35 years ago, to either “her loving parents” or law enforcement.
The best case to both test the scope of the Supreme Court’s decision in Masterpiece Cakeshop and to answer its unresolved legal questions is, indeed, a new version of Masterpiece Cakeshop. Last month, baker Jack Phillips sued the Colorado Civil Rights Commission for another ruling against him and his bakery. Although Phillips received a narrow win in the original Masterpiece Cakeshop, the free speech claim in this new case is somewhat stronger, and the legal landscape has been altered in Phillips’s favor by the original case. Because this new case presents a free speech claim that can easily be distinguished from the sale of interchangeable goods and services, a decision in favor of Phillips is unlikely to seriously undermine civil rights and anti-discrimination laws.
The job of a Supreme Court Justice is replete with contradictions. The Court is accountable to the people, and the Senate uses its “advice and consent” power to approve nominees. However, the Court must be independent of the people, rendering judgment based on its interpretation of the law, instead of serving a political master or agenda. The Court must generally defer to the democracy, allowing elected legislators to dictate policy. But the Court must unflinchingly champion our constitutional rights, upending democratic will based on vague constitutional amendments that are subject to multiple interpretations.
The difficulty of navigating these contradictions, which focus solely on the abstract roles a Justice must play, is compounded by the task of deciding the substance of specific cases, which are complex, multi-faceted, and often technical. We need experts on the Court – experts at reconciling competing principles, experts at developing a sound, consistent judicial philosophy that can apply timeless constitutional rights to a changing society, and experts at understanding legal texts, structures, and systems.
The process of approving a Supreme Court Justice should therefore be targeted to finding these sorts of legal experts, with sound judgment and impeccable analytical skills. We need Justices who understand that their decisions have human consequences, but who do not overly impose their own political sensibilities onto these consequences. Instead, the Senate confirmation hearings appear, based on the grandstanding of Senators on both sides of the aisle, to be a way of pandering to the basest instincts of the very people from whom the judiciary is designed to be independent.
To some extent, the political pandering of the confirmation hearings is due to the fact the Court has appropriated a great deal of power, interpreting the Constitution to include provisions far beyond the text. To some extent, our intractable partisan hackery problem is due to increased attention to the Supreme Court by citizens who either misunderstand or willfully ignore the role of the Court. Neither Democrats nor Republicans at this point want to unilaterally appoint a Justice whose jurisprudence does not well align with the general sentiment of their base. I propose a modest solution that could change the tenor of both the Senate confirmation hearings and the public’s thinking about the role of the Court.
After years of thinking about how best to teach law students to engage with legal concepts, I have a hypothesis that I would like to subject to analytical scrutiny. That hypothesis is this: One reason our political and cultural discourse is in such an angry, fractured state is because people are not being taught to think properly. Absorbing, assimilating, and evaluating information is a skill that can (and must) be taught. I will provide examples of our broken reasoning skills using two galvanizing populist figures.