Justice Talk Pretty One Day

Earlier this month, the Supreme Court heard oral arguments in Boyer v. Louisiana, a case that presented questions about the rights of criminal defendants, including the rights to counsel and a speedy trial. See generally here. Whether the case will be of great lasting significance remains to be seen, as the Court will not issue its decision for some weeks. It already has drawn significant attention from Court-watchers, though, for reasons entirely collateral to the merits of the case.

As most people know, Justice Clarence Thomas is not frequently a vocal participant in oral arguments. In fact, that’s probably an understatement: before the Boyer argument, it nearly had been seven years since he last spoke in open court. Back in 2010, I wrote:

This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.

Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.

Perhaps I limited my survey of reactions to Thomas’ recent remark because of how I had seen him regarded in the past, or perhaps I’m just less attuned to Court-watchers today than I was three years ago (and I am), but I did not detect the same degree of disparagement I did before. More than anything, people seemed to see the happening as a sort of political novelty. Some actually called it “brilliant,” but that seems ridiculous in light of what Thomas actually “said.”

When Thomas’ name made its appearance in the transcript, the discussion at hand was about the qualifications of the criminal defendant’s counsel. Justice Antonin Scalia asked whether the defendant’s lead counsel was a Yale Law School graduate. After Scalia received an answer in the affirmative, the transcript records the following:

JUSTICE THOMAS: Well, there — see, he did not provide good counsel.

(Laughter.)

Everybody but Justice Sonia Sotomayor and possibly the arguing attorney seemed to be laughing at this point at what those in attendance agreed was a joke by Thomas, including Tom Goldstein, who wrote:

Most of the Justices were in a lighthearted mood today.  There was a lot of banter between them.  At one point, the questioning turned to whether the petitioner – a capital defendant – had “competent” counsel.  Justice Scalia made the rhetorical point that his lawyer was impressive because she had gone to Yale.  Chuckling, Justice Thomas interjected (as I heard it, imperfectly) that fact might make the lawyer “incompetent.”
…
Everyone who heard what he said recognized it was a joke.  All the Justices laughed to one degree or another.  So did the bar and gallery.

The most interesting part is that it isn’t even clear whether Thomas intended to speak into the microphone; some had noticed him passing a note to his neighbor, Scalia, and thought the remark may have been intended to be a private one.

In any event, the context to this remark is simple and should have been immediately apparent to anyone with even a general familiarity with Thomas. He attended Yale Law School himself, so at the very least, the joke was a self-depreciating one. That’s assuming he’s softened his views toward Yale. In the past, at least, he has not been especially proud of his time in New Haven because he believed he only was accepted there due to the school’s affirmative action policy, and he somewhat famously stuck a fifteen-cent price tag on his diploma as a signal of the value he placed on his Yale degree. Some commentators noted that Thomas in fact has been warming up to Yale more recently, but any deep analysis beyond this would not appear to yield anything of great significance.

Instead of moving straight along with things, though, I think this occasion does offer a good opportunity to remember that there were good reasons for Thomas to keep his silence. Beyond the personal ones, which he has clearly set forth in his autobiography and elsewhere, it is helpful to remember that the written briefs, as Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position. Naturally, there is reason to believe that he is not the only justice who takes this view, even if he is the only one who will say it out loud.

___________________________________________________________________

Previously

Silent Justice – My full remarks on the fourth anniversary of Justice Thomas’ silence at oral arguments

Thinking Positively About Negative Implications

The Constitution’s Commerce Clause, Article I, § 8, has been in the news this week, but it’s the Clause’s negative implication– known as the Dormant Commerce Clause– that provides the conceptual starting point for this post and its ultimate conclusion about the full meaning of First Amendment speech rights. If the Commerce Clause is an express grant of authority to Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” the Dormant Commerce Clause is an implied restriction on state authority over a regulatory area– interstate commerce– that belongs to Congress. State regulation that affects interstate commerce must bear a rational relationship to a legitimate state concern and the benefit the regulation affords to the state’s interest must outweigh the burden on interstate commerce. This (implied) proscription applies even in the absence of affirmative federal regulation of the precise subject matter the state sought to regulate. It is enough that Congress could regulate the aspect of interstate commerce; it need not actually have done so.

A related concept is that of implied preemption. In general, implied preemption is a decision to resolve conflicts between federal and state law by choosing the federal law in most every instance. One application of implied preemption comes where Congress so occupies a regulatory field– immigration might be an example, Arizona and Alabama notwithstanding– that any state regulation in that area is preempted, even if Congress hasn’t passed a statute addressing the particular issue.

There is a concept at work both with the Dormant Commerce Clause and implied field preemption that has to do with the virtue and authority of silence. Both doctrines place silence on authoritative par with sound, inaction equal to action. They recognize and protect the full scope of the grant of authority, even if the authorized body never exercises the authority to the fullest extent.

Calvin College is one of the nation’s leading Christian Reformed colleges, and while it has a reputation for social conservatism, it also has a reputation for hosting progressive, secular music concerts. About a year and a half ago, these two interests clashed, however, when the school cancelled a scheduled performance by indie act The New Pornographers on the sole basis of the band’s name, and even in full recognition of the fact that the band does not “endorse[] pornography.” There’s no legal question that the private college may host or not host whatever entertainment it chooses, but the story still took on a community discussion that proceeded along free expression lines.

We usually talk about First Amendment speech in terms of things actually said, and the legal and political questions usually have to do with whether the First Amendment protects words actually spoken or actions actually taken. But maybe the First Amendment is about more than fostering a broad cacophony of speaking and a mess of expressive acting. Maybe there’s a negative implication of the First Amendment and its protected rights, a Dormant First Amendment.

The Dormant First Amendment might recognize that, just as someone has a right to say something, he also has a right (or at least a strong interest) in not hearing something. For example, we might see Calvin College not as restricting someone else’s speech in cancelling the concert but as preserving its own interest in not hearing something it found distasteful. The former formulation carries a negative connotation, but the latter should carry a positive one. Rather than the First Amendment (conceptually, not mechanically– although I do appreciate that that statement may impair the impending metaphor) being a one-way ratchet that directs only more and more speech-volume, why not a multifaceted approach that values discernment, distillation, refinement, taste?

It may be true that the First Amendment was meant to create a marketplace of ideas, as courts have said. Marketplaces are loud, noisy places, and the merchant who hawks her wares the loudest may be more likely to survive there, but not everyone survives in a market because customers don’t do everything sellers’ advertisements tell them to do. Perhaps people would make better decisions if they patiently heard every pitch from every market participant, but at the very least, the First Amendment is about a right to speak, not a right to be heard. Moreover, if the First Amendment is about everybody being able to say whatever they want, is it really so offensive to that principle to say that people ought to be able to use their discretion to decide when to step to the side of the spray of the verbal fire hose?

As for how the idea of the Dormant First Amendment would work practically I’m far from sure, and if there are any readers who aren’t practically dormant at this point, comments, as always, are welcome below. The real thrust of this post is to suggest the possibility that, like the Dormant Commerce Clause and implied preemption doctrines place Congress’ inaction on authoritative par with its action, the First Amendment might also have a negative implication that places an individual’s desire to avoid speech on protective par with his or her desire to engage in speech.

Remembering to Vote: Memory and Suffrage

Last month, the Supreme Court heard oral arguments in three consolidated cases, Perry v. Perez, Perry v. Davis, and Perry v. Perez, all having to do with state and federal elections in Texas. The cases are complicated for a number of reasons, and they even seemed to give the usually confident justices some trouble, as Lyle Denniston’s report on the oral arguments for SCOTUSblog indicates. The situation is complicated in terms of both procedural and substantive law, as there are challenges to Texas’ policies on different grounds in different courts, with a number of different entities all advancing their own remedial proposals, all with a pressing deadline that requires some solution in time for state primaries ahead of this fall’s general election. At the root of these cases, though, are fundamental questions about the Voting Rights Act of 1965, a central piece of the civil rights legislation of the 1960s that already has been facing some fundamental questions in the last few years. In 2006, after much debate, Congress voted to extend the expiring legislation for another twenty-five years, and in 2009, the Supreme Court avoided ruling on the constitutionality of a key provision of the Act while expressing doubts about its ongoing constitutionality. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. ___ (2009).

Voting Rights Act litigation usually focuses on one or both of two sections of the Act. Section 2 contains the Act’s general rule against voting discrimination. Section 5, the more controversial of the two, requires certain identified jurisdictions, typically in the South, to seek approval from the Attorney General before making changes to election procedures.

In an excellent and extensive piece that followed the Northwest Austin decision, Joel Heller outlined the Voting Rights Act’s legal landscape and argued that the interpretive tools and sources of authority upon which the Court relies in its Voting Rights Act (“VRA”) cases “present historical, ideological, and statistical perspectives on the question of the continued necessity of § 5, with an especial focus on the South. They tell divergent stories about history, race and  voting.” Joel Heller, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 3 (2011), avalilable here. What’s missing, according to Heller, is “the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same concerns as the VRA. Specifically, a prominent theme in Faulkner’s work is the power of memory in the South and the ongoing influence of the past on contemporary actions and attitudes.” Id.

As a legal matter, Heller argues that it’s appropriate for courts to consider literature:

Literature can serve as a probative tool for understanding and evaluating policy because it is often, like law, a response to social problems. Especially with a measure like § 5 that touches on such fundamental matters in American society as racial equality and voting rights, Congress and the courts should make every effort and consult every relevant source in order to understand fully the issues at stake. As a chronicler of the pre-VRA South that Congress was responding to when it enacted and reauthorized § 5, Faulkner could prove a valuable resource in this undertaking. Ignoring his examinations of the role of memory in this context risks losing out on the insights of a uniquely astute observer of Southern culture and psychology.

Id. at 4.

The ongoing question in VRA § 5 litigation is whether the prophylactic measure still is needed, and this inquiry requires a court to determine what evil remains present in the governed jurisdictions and whether that evil necessitates the continued application of § 5. Heller continues:

Just as § 5 is a solution uniquely concerned with the past, Faulkner’s novels show that the lingering power of the past is also part of the problem. Rather than punishing the sons for the sins of the fathers, § 5 can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. . . . By focusing on the extent to which “things have changed in the South,” the Court ignored the possibility that, for some, “the past is never dead, it is not even past.”

Id. at 4-5. In short, Heller has identified a theme common to the creation, implementation, and judicial interpretation of § 5 and Faulkner’s novels: “the question of how the past and memories of it continue to shape current attitudes and actions.” Id. at 28.

Heller’s article is thorough and thoughtful, and after thinking about it for four or five months, I still find little to add to it or comment upon. As a matter of mere judicial mechanics, strict jurists may reject the notion that judges should consider much beyond the language of the statutes and rules at issue in the case, but they would completely miss the point of the article. Moreover, where courts in VRA § 5 cases already routinely are considering things beyond the narrow scope of legal authority, judges’ abilities to define the bounds of permissible authority for consideration are diminished. In this vein, Heller has made his case for the necessity of the inclusion and consideration of material like Faulkner’s works, which speak to the very inquiry in which the courts in these cases are engaging in both a historical and thematic manner.

The full text of the article is available for download here.

Michael Sandel’s Untimely Response to the Libertarian Critique

Last week, I had the fortunate opportunity to hear two presentations by (and briefly meet) Michael Sandel, a leading political theorist and, less magnanimously, a substantial influence on my undergraduate thesis. While a review of his latest book, the New York Times bestselling Justice: What’s the Right Thing to Do?, will have to wait until I finish Justice Breyer’s book, I wanted to make a timely note of the experience of hearing and meeting Sandel.

The morning lecture, thoroughly covered by The Chautauquan Daily, was a traditional presentation in which Sandel familiarized the audience with his approach to public discourse. Sandel carries the mantle of Aristotelian civic republicanism into this late-modern age, arguing that deliberation over the good life, morality, and spirituality, is an appropriate and necessary part of our public discourse. Rather than restraining public debate to a narrow set of political values and leaving things like religion and morality to the private sphere, Sandel believes– contrary to the prevailing view– that people should not have to hold back parts of themselves when participating in public discourse. While I’m not sure he’s gone so far as to say this outright, I think his approach rejects the public-private division contemporary liberal society mandates, instead advocating a broad spectrum of public life in which the public-private deliberative division melts away.

The afternoon lecture, by contrast, was styled after one of his interactive classroom presentations, in which he engaged the audience on questions of policy. Did the handicapped golfer, Casey Martin, have a right to use a cart in PGA events? Should state governments limit marriage to heterosexual couples?

At the end, he took audience questions, the last of which presented a good opportunity to explain his approach. The question came from a self-described libertarian, who told Sandel that he didn’t think the government had any business even answering the questions Sandel posed. The questioner said that the PGA, a private organization, should be able to include or exclude whomever it wants, and the government has no authority to say otherwise. As for state governments, the questioner explained, they should not be regulating activities, such as marriage, between consenting adults.

Sandel used this opportunity to “test” the questioner to see if he really would adhere to a libertarian viewpoint as applied to more controversial facts. For example, would the questioner allow the PGA to restrict its events to white golfers? The questioner said he would boycott the events, but the PGA could do so. Sandel also inquired of the questioner’s acceptance of various extreme activities between consenting adults, but the questioner stood by his position. Apparently satisfied that the questioner was, in fact, a true libertarian, Sandel concluded the presentation without further substantive comment.

This exchange was a missed opportunity for Sandel. Rather than defend his view, or at least helpfully contrast it with the libertarian perspective for the attentive audience, Sandel did little more than put the questioner through the paces of a libertarian litmus test. What’s unfortunate is that he had a good response. In his 1996 book Democracy’s Discontent, Sandel wrote about the Lincoln-Douglas debates of 1858, when the two politicians debated slavery and other issues. Stephen Douglas supported a liberal position: because people disagreed as to the morality of slavery, the federal government ought to maintain a neutral position and allow the states and territories to decide the question for themselves. Abraham Lincoln, on the other hand, took a position in line with Sandel’s civic republican view and in opposition to slavery on moral grounds, observing that anyone can advocate political neutrality “who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he doesn’t care whether a wrong is voted up or voted down.” Michael Sandel, Democracy’s Discontent 22 (The Belknap Press of Harvard University Press, 1996).

Lincoln’s view is a direct challenge to those like the questioner, who say that while they personally (morally) oppose a particular activity, the best public policy respecting it is one of neutrality. This is the query Sandel should have put before his libertarian questioner.

Judicially Speaking, Cut the #$*@%!

On Tuesday, the U.S. Court of Appeals for the Second Circuit rejected the Federal Communications Commission’s strict broadcast indecency rule as unconstitutionally vague. The Los Angeles Times first reported the news here. The Second Circuit already heard the case once, Fox v. FCC, 489 F.3d 444 (2d Cir. 2007), and when its initial ruling was appealed, the Supreme Court upheld the FCC’s rule in a limited holding, FCC v. Fox, 129 S.Ct. 1800 (2009). The Court decided only that the rule was not arbitrary and capricious under the Administrative Procedure Act; it reserved judgment on the constitutional question, which the Second Circuit answered Tuesday.

Fox news: For Justice Thomas, the 21st Century Fox means closing the doors on 20th century precedent.

Communication between judges can be different from communication between other types of public officials. Court-watchers find Supreme Court oral arguments to be important, in part, because the justices can try to influence each other or tip their hands to counsel and the public through their questioning. Judges in different courts try to communicate with and influence each other too. Most obviously and frequently, this happens when a higher court sends an appealed case back to the lower court (called “remanding”) for further proceedings in light of the instructions and guidance in the higher court’s written opinion. Intra-court communication can happen in less obvious ways too. Judge Diarmuid O’Scannlain’s concurrence in Ceballos v. Garcetti, 361 F.3d 1168, 1185 (9th Cir. 2004) is one example. In that case, dealing with the First Amendment speech rights of public employees, O’Scannlain voted in favor of the court’s opinion because it followed Ninth Circuit precedent, but he disagreed with that precedent and the accordant outcome of the case before him and wrote as much in a separate concurring opinion. This separate opinion by a noted conservative judge on a court with a liberal reputation served as a message to the justices of the Supreme Court, which trended conservative. The Supreme Court took the case and reversed the Ninth Circuit’s decision. Garcetti v. Ceballos, 547 U.S. 410 (2006). O’Scannlain’s concurrence served as a blueprint for Justice Anthony Kennedy’s majority opinion, which Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito joined, and Kennedy even mentioned O’Scannlain by name and cited his concurring opinion. See id. at 416-17.

Something similar is going on in the FCC case, the latest chapter of which the Second Circuit wrote Tuesday. When the Supreme Court passed on the case after the Second Circuit’s first ruling, Justice Thomas concurred in the majority decision that upheld the ruling. FCC v. Fox, 129 S.Ct. at 1819 (Thomas, J., concurring). In his separate opinion, Thomas explained that the majority correctly upheld the FCC’s rule as a matter of administrative law, but he expressed a willingness to strike down the rule on First Amendment grounds. As Mike Sacks reports, Tuesday’s Second Circuit opinion echoes Thomas’ concurrence. The Second Circuit reached the end Thomas prescribed, rejecting the rule on constitutional grounds, but had to use different reasoning to reach that result because Thomas’ approach required overturning Supreme Court precedent, means only available to the Supreme Court. See id. at 1819-20 (“I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”) (citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and FCC v. Pacifica Foundation, 438 U.S. 726 (1978)). Unlike the Garcetti example mentioned above, which featured a court of appeals judge sending a message to the Supreme Court justices, it was a Supreme Court justice signaling the court of appeals judges in Fox. As such, there may be one more audience for Thomas’ concurrence: his fellow justices. If the government appeals this most recent ruling, Thomas’ view will be before his colleagues, who, unlike the court of appeals judges, have the authority to affirm his result (striking down the rule) with his reasoning (overruling Red Lion and Pacifica and holding that the rule is unconstitutional under the First Amendment). If nothing else, a second appeal to the Supreme Court will allow Thomas to achieve a judicial communication hat trick– 1) his original concurrence; 2) sent as a message to the Second Circuit; 3) a version of which would return to the Supreme Court in the form of the appealed decision, should the government appeal the latest ruling.

Incentivizing Discourse: Bringing Scholars and Policy Makers to the Table

Incentives direct behavior because people act in response to them. Successful systems provide incentives that direct people to act so as to bring about the desired outcomes of the systems’ creators and implementors. Systems sometimes break down because of an internal misalignment of incentives. Other times, breakdowns or other undesirable results happen when two interacting systems have internal incentives inconsistent with the desired nature of the external interaction between the two.

The relationship between the scholarly world and the policy world has a problem of the latter variety. The academy incentivizes scholars to publish and publish often, job security and advancement depending upon publication. These bright minds produce volumes of material that are themselves voluminous, but, beyond satisfying publication editors, they have little incentive to ground their work in any semblance of reality. Meanwhile, policy makers (legislators and their advisors) need the latest and best scholarship, but the growth of government has put them in a position in which they have very little time to peruse the wide array of scholarly journals and publications. When they believe that the bulk of  the material is not helpful to the high-pressure, results-oriented world of legislation, they may be even less likely to seek out this information. In short, both groups need to channel Siddhartha Gautama and leave their pleasure palaces and come in contact with the nitty gritty of the real world. Aside from the possibility of communitarian nirvana, however, they have little incentive to do so.

Professor Michael Vandenbergh identified the environment as an area in particular need of functioning interaction between academics and policy makers and sought to create a new set of incentives that would bridge the described gap between the two. The result is the Environmental Law and Policy Annual Review (ELPAR), a once-a-year publication that republishes condensed versions of the best articles in environmental law and policy, along with short, responsive commentaries from governmental, industry, legal, and academic voices. By providing a prestigious venue for (re)publication and the knowledge that policy makers will read their work, ELPAR incetivizes scholars to produce realistic, implementable policy proposals for and solutions to current environmental issues. In addition to a publication, ELPAR brings the two groups face-to-face with annual conferences on Capitol Hill. See here (2010 conference schedule); see also here (discussing ELPAR’s new Nashville conference, held for the first time this spring).

The 2010 Washington, D.C. conference is this Friday, April 16. Details are available here.

A Limited Government of the People, by the People, for the People

Sunday night, the U.S. House of Representatives passed H.R. 3590, health care legislation historic in scope, with a 219-212 vote along party lines. (Thirty-four Democrats joined all of the House Republicans in opposing the legislation.) Although not an example of divided government as discussed earlier, see supra here and here (relevant comment), the partisan split on the vote was not the only division this bill illuminated. House Minority Leader John Boehner, R-OH, and other Republicans contended that the bill was unpopular with the American people, while the majority party, in victory, assured all that the measure was what the people wanted and needed. Voters opposed to the legislation said that Speaker Pelosi and the Democrats were unresponsive to the electorate, while those in favor decried Boehner’s false populist demagoguery. The difference between a democracy and a republic is a topic suitable for a future post. This post focuses on how, within the context of division and divided government, people express themselves.

Probably since before written language, people have expressed themselves through art. From cave drawing, stone sculpting, wood carving, and mound building, to mosaic work, painting, and architecture, artistic creations carry and project messages. Sometimes the intended communication is an ode to beauty or a representation of reality. Other times, art is a statement about culture, society, religion, or politics.

Music is an apt artistic vehicle for conveying political messages. Folk music is particularly well-designed for this task. Woody Guthrie and Pete Seeger lit the torch for this medium during the First Great Depression, and Seeger keeps it burning to this day. Along the way, they shared the flame, in varying luminosities, with Bob Dylan, Joan Baez, Richie Havens, Johnny Cash, Bruce Springsteen, Peter Paul & Mary, John Prine, and many many others. Folk singers need not become famous to succeed. Perhaps more than any other secular genre, the message is the most important aspect of the music. Usually accompanied by light acoustic instrumentation, folk music is portable, the information spread through live performances. Unlike modern pop music, folk musicians do not aim for identical performances each time. Fans and critics alike attack Bob Dylan for the unfamiliar, often garbled settings in which he presents well-known numbers. The point is not to create fist-pumping arena rockers, but rather to tell a story. Stories aren’t told exactly the same way twice, and sometimes they change. This is not to say that audience participation isn’t allowed. Sing-alongs, for example, are a great way to engage listeners in direct participation and encourage the spread of a song’s message. It just depends on the song.

Musicians in this area tend to be populists and progressives, but some are conservatives, like songwriter Orrin Hatch, a U.S. Senator and Republican Party member. Another folk musician who walks the political line is Woody’s own son. Arlo Guthrie, known for songs like “Alice’s Restaurant Masacree,” “The Motorcycle Song (The Significance of the Pickle),” and his version of “City of New Orleans,” is a Catholic and, as of President George W. Bush’s first term, a Republican. In 2009, Guthrie told an interviewer:

I became a registered Republican about five or six years ago because to have a successful democracy you have to have at least two parties, and one of them was failing miserably. We had enough good Democrats. We needed a few more good Republicans. We needed a loyal opposition.

In the 2008 presidential election, Guthrie endorsed Ron Paul, a Republican member of the U.S. House of Representatives.

Guthrie’s case is an example of the practice of divided government politics, and it shows that divided government proponents aren’t always conservatives crossing over to vote for Democrats. His position as a folk singer– part of a royal lineage with a solid identity of his own– reminds us of the voice we all have and have a responsibility to use. Divided government doesn’t mean unresponsive government, and a republican form of government doesn’t mean disconnected government. Indeed, many have sacrificed so that “government of the people, by the people, for the people, shall not perish from the earth.”

Thanks to MW for linking me to the Guthrie interview.

The Cost of Consensus

The ability of Americans to sit through and listen to the obvious for several days is awesome to behold, but they consider it a worthwhile price to pay for the testing and creation of consensus.

Odin W. Anderson, The Uneasy Equilibrium: Private and Public Financing of Health Services in the United States, 1875-1965 124 (College & University Press 1968).

There is value in listening and in patience, but we should also remember the importance of efficiency as it pertains to the necessary component of action. See supra here. Consensus probably is required, however, before meaningful action is an option.

Silent Justice

This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.

Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.

Thomas has offered a number of explanations for his disposition in interviews, speeches, and his memoir, My Grandfather’s Son. It’s not due to shyness– those who’ve met him report an outgoing character with a delightful sense of humor– but he has cited the shy demeanor he developed as a child who grew up speaking an English dialect, Gullah, as instilling a propensity for quietness. He also has criticized his colleagues for overplaying the judge’s part during oral arguments (“I have no idea what they are doing”) and, as a consequence, does not want to contribute to the cacophony he hears coming from the bench. A third common explanation references the often-acknowledged reality that appellate judges have read the parties’ briefs prior to oral argument and likely already made up their minds. The written briefs, Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position.

For anyone not predisposed to dislike Thomas for any number of irrational reasons, any one of these responses would seem to be an objectively acceptable explanation. Neither his responses nor his consistent pattern of practice has dissuaded observers and critics from continuing to question his silence, however. Among the questioners is his colleague, Justice Antonin Scalia, who thinks Thomas should engage in oral argument for his (Thomas’) own benefit. Off the bench, others are recognizing Thomas’ importance and basing their objection to his silence in that realization. Singling him out “because his silence is so unrelenting, his opinions are so far-reaching, and his position on the nation’s highest court is so influential,” one academic writes:

Rarely has a Justice said so little but had so much to say….Justice Thomas’ profound silence during oral argument undermines the Court’s deliberative process-and weakens the legitimacy of the far-reaching conclusions…that Justice Thomas reaches without the benefit of briefing or oral argument. By removing himself from oral argument, Justice Thomas’ opinions do not benefit from the full adjudicative process designed to test theories in open court….Justice Thomas should end his silence, both for his own benefit and for the Court’s.

David A. Karp, Why Justice Thomas Should Speak at Oral Argument, 61 Fla. L. Rev. 611, 613-14 (2009). Karp and Scalia agree that Thomas should participate for his own sake. If, contrary to his assertions about his own behavior, Thomas really is just sticking his head in the sand, the self-help rationale might make sense. There is no suggestion, though, that he does not participate in the justices’ conferences or consult with them outside of the courtroom, and it is said that he is respected by his colleagues as a skilled opinion writer. Thomas certainly both is aware of his silence and knows how to ask a question if he has one; he’s done it before, if infrequently. It is not implausible to think that a justice could make up his mind after reviewing a case’s written record, which probably includes three briefs (petitioner’s brief, respondent’s brief, and petitioner’s reply brief), two lower court opinions (trial court and intermediate appellate court), a trial record, and other filings like motions and amicus briefs. If nothing else, the suggestion that “Thomas should end his silence…for his own benefit” comes off as a bit of a slight. Id. at 614.

The other reason Karp says Thomas needs to ask questions is for the benefit of others. Karp’s concern seems to stem from the “radical” nature of Thomas’ views, id. at 613 (quoting Erwin Chemerinsky, Foreword: Justice Thomas and the First Amendment, First Amendment Center (Oct. 8, 2007)), and Karp’s belief that advocates would better be able to inform those views if Thomas asked questions to guide their responses. It is not obvious that this is a statement of the proper attorney-judge dynamic, but even if it is, it may not be sufficient to require Thomas’ participation. After more than eighteen years on the Supreme Court, his judicial philosophy, unique among the sitting justices, is well known and, by its nature, not prone to radical shift. Just as justices write their opinions in inclusive ways to try to secure the votes of colleagues, so too should advocates draft their briefs to speak to the peculiar concerns of the justices who will be deciding the case. In short, if a lawyer wants Thomas’ vote, he or she has a pretty good idea how to get it.

Thomas has his defenders, including Supreme Court litigator Steffen Johnson, who says Thomas’ cold bench demeanor “reflects humility on his part,” and, contrary to Karp, the lawyer’s role at argument is to support and assist the justices.

The aim of this post is not to mount a full defense of Thomas’ silence or his judicial philosophy. It merely is to push for a fair and reasonable look at one aspect of his public temperament. I favor richness in public discourse, and Thomas’ voice at oral argument would contribute to that richness. If nothing else, it might force his critics to read his writing and thereby engage with him on a deeper level. While it’s not possible to know for sure why he usually keeps quiet during oral arguments, I can appreciate Thomas’ apparent recognition of the value of listening and the effect it might have on the other justices if they listened to his silence.

Jury Deliberations: Twelve Angry [Humans]

When the parties to a legal conflict fail to resolve their disputes outside of court (e.g., “settling” or “plea bargaining”), the matter goes to a trial. The American system affords two general types of trials: jury trials and bench trials. The latter is another way of saying that the trial will be before a judge alone, without a jury. The former, the jury trial, is familiar and is the basis for the discussion here. When attorneys are presenting evidence and arguing at trial, they must remember that the individual members of the jury are their audience, and they must keep in mind the particular nature of this audience. Although they can vary in size and composition, it is most useful to think of juries as twelve lay citizens who are hearing most of the trial presentation– both its substantive and technical aspects– for the first time. This means that they probably will receive the presentation without any context for understanding or with a warped or misinformed context, due to the proliferation of legal-themed popular entertainment like John Grisham novels and television programs like Law & Order. Most important for lawyers, most mysterious for legal scholars, and most relevant to the current discussion here, however, is the fact that after receiving the trial presentation, the jurors retreat to private quarters and deliberate.

The most popular exploration of the American jury deliberation process came in the form of the 1957 motion picture 12 Angry Men. The movie isn’t perfect– it contains technical inaccuracies that irk some legal practitioners but serve dramatic purposes– but it was good enough for the Japanese, who used the story as an aid to civic education when preparing citizens in 2007 for the adoption of a jury system that was to go into effect this year. 12 Angry Men showcases passion, drama, and emotion in civic deliberation. These sound like good things, and they probably are when thought of as aspects of a process that leads to a desirable outcome. In the trial context, that would be a just verdict.

In a society that favors quality deliberation as a means to the end in the form of a desirable outcome or decision, things can get twisted around. Specifically, people can find themselves treating deliberation as an end. The wide dissemination of cable television has brought an expansive set of cable news networks into the public forum. These networks have elevated individual ”pundits,” who frequently seek to win the day (or, in the television news cycle timescale, the half-minute) by achieving a trite, petty, or trivial oratorical victory. The primary tools in these small battles include shouting, hyperbole, and the silencing of opposition voices. To many, this behavior is mere annoyance, something to pay attention to or not, without consequence.

CNBC's empanelled business and finance jury: The Decabox

There are other, more insidious effects of this twisting of deliberation from a means into an end. One is the presentation of a false dichotomy. Another is the championing of minor points made as key victories that destabilize the opposition in some fundamental way. The first is rather simple, and can be saved for another time: whether it’s Fox News Channel’s “Fair and Balanced” treatment or CNN turning to a “Republican Strategist” to play Devil’s Advocate, these presentations often oversimplify problems, drum up resentment or disagreement where little actually exists, or distort the weight of authority, sentiment, or disagreement by giving “equal time” to “equal viewpoints” that may be neither equal, representative, nor accurate. This post is addressing the second point. That one pundit, usually the host of the program, can extract a minor victory and therefore signal the illegitimacy of the entirety of the talking head-opponent’s (no, not these folks) views distorts public dialogue and understanding, and does so in a manner not immediately obvious to the observer. This is true even when the point “won” is true. It is the relative magnitude, and not the accuracy, of the two positions– the minor victory and the major worldview– that causes the distortion. Even totally bogus worldviews properly withstand attacks comprised entirely of a single, nitpicky counterargument; how much more, then, a more legitimate position.

This happens all over the political spectrum. Sean Hannity demonstrated it well a few years ago when he invited a liberal, environmentalist stooge on his program when Al Gore’s An Inconvenient Truth Tour was in full inconvenience mode. If memory serves, Hannity was not finding a lot of success in this debate. Finally, he seized on a favorable point: then-President George W. Bush’s Crawford, TX ranch was more environmentally friendly than Gore’s Nashville, TN mansion. This nugget of truth in hand, Hannity demanded that his opponent submit and surrender all of his environmentalist positions. This is the trick, though: just because Gore doesn’t practice what he preaches doesn’t mean he’s preaching a false gospel. (The other side is even sillier: because the President did what Gore should have done under Gore’s views, the President is right and we should therefore ignore Gore’s views?) Of course, we can’t get tricked by the trick (that is, we cannot dismiss a Hannity whenever he or she is able to advance only a single true, if off-base, criticism against an environmentalist): just as bad attacks shouldn’t undermine a worthy opponent, neither should weak attacks be taken as a signal of the general merit of the opponent or of the pettiness of the attacker’s general position.

As discussed in the first post, patience would seem to be an apt virtue in this position, as would the impetus to gather further information and seek to discover whether other legitimate counterarguments exist that comes from the knowledge that one must eventually take action in the form of rendering a decision on the matter at hand.

For a current situation that has the potential to play out along lines similar to that of the Hannity exchange recalled above, read this brief post about the leaked climate change research emails and offer your comments below in light of the discussion here. For an argument about how this new information should affect the public’s knowledge and views, read this related post.