How to do harm by following the rules

Stephen L. Winter is a law professor at Wayne State University School of Law I've followed his excellent writings for many years. I recently read one of his more recent articles, "John Roberts Formalist Nightmare," alleged in the January, 2009 edition of the University of Miami Law Review (63 U. Miami L Review 2009) (not available online). To set the stage for his brutal critique of Supreme Court Chief Justice John Roberts, Winter considers four approaches to the meaning of "formalism." In the first approach,

The term "formalist" is an epithet to describe a judicial decision that ascribes away responsibility (as in, "It's not me, it's my job . . . or the law, or the text, etc."). Hence, formalism is the frequent refuge of socially and politically conservative judges when faced with the claims of reform movements.

The second approach is closely related to the first. It refers to "mechanical jurisprudence." The basic idea is that "general doctrines can be applied deductively to decide specific cases, thereby assuring the objectivity and neutrality of judicial decision-making." Under this approach, the reasoning process is "supposed to be guided solely by the formal entailment of the concept. Under this second approach, a judge will insist that a concept (e.g., "freedom of contract") fully determines the outcome of a particular dispute, irrespective of the broader social ramifications. The third approach connotes "hypertechnicality in judicial decision-making." Winter points to two recent decisions by Chief Justice Roberts in which the United States Supreme Court rigidly applied legal deadlines "notwithstanding the presence of strong equable claims and long recognized exceptions." One of those cases was Ledbetter versus Goodyear Tire & Rubber Co., a decision so palpably unfair in its anal-retentive application of a narrow statute limitations that Congress promptly got to work on the issue and recently overruled it. See here and here. As Winter points out, Ledbetter is a great example of the many instances in which "hypertechnicality and conceptualism often work hand-in-hand to provide a cover of necessity for willfully reactionary decisions." There is also a fourth sense of formalism. In this fourth approach to formalistic reasoning, concepts are treated as meaningful "entirely abstracted from their contexts. Winter gives the example of Plessy vs. Ferguson, in which the Supreme Court presented its solution to the case as one of "formal equality," presuming the absolute equality of the races before the law, bringing to mind Anatole France's famous quote that "The law in all its majesty forbids the rich and poor alike to sleep under bridges, to beg in the streets, and this deal their bread." Winter laments that thanks to its ability to frame individuals in abstract ways, far from their real-life social contacts, this sense of formalism allows a court to simultaneously express regret for an outcome yet fiercely perpetuate it through conscious and narrowly tailored decision-making. What do each of these senses of formalism haven't common? Each of these approaches allows decision-makers to

give every appearance of deciding the case according to law without ever acknowledging that the law they are "following" is in actuality a product of their own interpretive acts. . . . Formalist legal reasoning engages the decision-maker in a performance of impersonal decision by appealing to authority. It disclaims the personal responsibility of the decision-maker and, though us, frustrates accountability. . . It operates in abstraction from the social prerequisites and consequences of law. In all these ways, formalism is anything but democratic . . . it is a distorting methodology that weighs on the law like a nightmare more reminiscent of the injustices of the 19th century than of a modern society that professes to value equal justice under law.

Stephen Winter's analysis of formalism can be extended far beyond exercises in jurisprudence. It can be extended to all instances wherein someone wielding political power makes an argument or a decision by focusing tightly on a principle detached from the social context that gives that principle its legitimacy. Winter's article is also well worth reading for anyone who wants to see substantial evidence that the Chief Justice of the Supreme Court of United States is quite capable of a substantial misreading of one of the most important cases ever decided, Brown v Board of Education. For instance, Justice John Roberts claims that Brown determined the outcome of Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) in that Brown purportedly prohibited government classification and separation, whereas the boundary plan adopted by the Seattle and Louisville school boards did not "separate" students at all. These were plans that were adopted for the purpose of providing a remedy for racial isolation. Winter points out several other major distortions Roberts gives to Brown. Winter also establishes Roberts' hypocrisy in criticizing a fellow justice (Justice Stephen Breyer) for relying on dicta when Roberts himself strays even further from relying on the holdings of precedent when he relied upon statements contained in appellate briefs, statements not included in Supreme Court opinions at all.

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Republican Justice: blindness to conflicts of interest

The United States Supreme Court was barely able to hold that it's wrong to spend $3,000,000 electing a judge and than be able to have your newly purchased judge decide a big case in your favor. Decided June 8, 2009, Caperton v. A.T. Massey Coal Company Inc. was a 5-4 decision, with dissents by John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito. The defendant in the West Virginia case was a coal company that had been accused of fraud, and the jury had awarded $50 M in damages against defendant. It was A.T. Massey's Chairman and Chief Officer Don Blankenship who stepped in to buy the judgship for Brent Benjamin for $3 M after the verdict, knowing that this case would be considered by the West Virginia Supreme Court. Chief Justice John Roberts frets that he can't criticize this obviously wrong case of a $3,000,000 judge because there are less obvious cases that would be more difficult to decide. Think about it: Roberts is urging that the Court can't decide the easy cases because there are also some other cases that aren't so easy. Why not just hang up your robes and give it up? Tell me a situation where that isn't true. Roberts goes even further, suggesting that hammering the $3,000,000 judge will undermine our fair, independent, and impartial judiciary. Good grief. Scalia had previously shown that he is completely obtuse to the idea of a conflict of interest when he decided a case favoring his duck-hunting buddy, Dick Cheney.

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Supreme Court Justice John Roberts: “doctrinaire conservative”

The New Yorker has published a detailed article on the track record of Supreme Court Justice John Roberts. The conclusion is that he is a "doctrinaire conservative." Here's an excerpt:

His jurisprudence, as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

But isn't Roberts simply following the law? There is an incredible amount of existing legal precedent (thousands of cases have been decided by the U.S. Supreme Court, and many thousands of additional cases have been decided by the numerous federal courts of appeals and federal district courts. Careful readings of these cases demonstrate that considerable numbers of these legal holdings conflict in both minor and major ways with one another. This ever-growing sometimes convoluted body of decided cases is the backdrop the work of judges, and they are charged to follow precedent, except when they choose not to, and--this is a critical point--their breaks from precedent (e.g., Brown v. Board of Education) constitute some of the Court's best moments. This backdrop makes for a strange formula for jurisprudential "rigor." So let's not pretend that judges are simply sitting on the bench to "follow the law" as though they were solving binomial equations. There is immense opportunity to insert one's own personal biases in a legal opinion, thanks to the many paths offered by precedent combined with human ingenuity. Recent examples of legal analysis by Jay Bybee (now JUDGE Bybee) would suggest that there is no limitation at all--that legal reasoning is merely a political power exercised by a person wearing a robe. Lest someone think that this is a hatchet piece on Roberts, I need to point out that I am sympathetic with a few of Roberts "conservative" themes. As one example, I am highly suspicious of judicial remedies for "racial" discrimination where those remedies impose widespread societal changes based on "race." We should be moving away from a belief in "race," not further legitimizing it. My personal bias is that we need to get to the point where we can all proudly say that we are all human beings or even that "We are all Africans." No one denies that Roberts is affable or that he is a lawyer who knows "the law" inside and out. Based on the convoluted set of existing law, though, combined with the immense discretion available to judges (under the cloak of "follow the law"), lawyers and judges can almost always find principles and cases to support almost any position they care to take. Throughout the history of jurisprudence, then, recurring questions are how should a judge choose among competing precedent and how should a judge apply that precedent? The point was illustrated well by Barack Obama, who as a Senator cast a vote opposing the appointment of Roberts:

In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent 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,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart.

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