The Blog "Hot Air" Stays True to Its Name With Article Suggesting Supreme Court Intentionally Delaying Ruling in Ricci

The blog "Hot Air" has stayed true to its name by publishing an article which suggests that some justices on the Supreme Court are intentionally delaying a ruling in Ricci v. DeStafano in order to secure the confirmation of Sonia Sotomayor. Although fellow law professor blogger William Jacobson, whose blog (Legal Insurrection) I admire and include in my blog roll, originally published the essay, I find the conclusion sketchy and unsupportable.

Jacobson's argument responds to an article in the Blog of the Legal Times, which analyzes a recent appearance by Justice Ginsburg on CSPAN. During her appearance on CSPAN, Ginsburg noted that the Court had rendered a substantial amount of 5-4 rulings this year and that it would soon issue additional split decisions.

Ginsburg also stated that "one can safely predict [that Ricci], will be among the last [decisions] to come out before the term ends." Ginsburg also praised Sotomayor, stating that "I was cheered by" her nomination and that "I look forward to a new colleague well-equipped to handle the challenges our work presents." Although Supreme Court justices rarely comment on the confirmation process, they have done so in the past. As BLT reports, Justice Stevens and Justice White spoke favorably regarding Judge Bork during his highly controversial and ultimately unsuccessful confirmation bid.

Ginsburg's comments, however, lead Jacobson to worry about the motivation of the justices:

It may be that Ricci will be one of the last decisions issued for entirely legitimate reasons, and Ginsburg merely was stating a fact which shows no motive. But Ginsburg’s endorsement of Sotomayor, combined with Ginsburg’s statements as to the timing of Ricci, creates the unfortunate appearance of one or more of the current Justices playing politics with the timing of the Ricci decision.

I have suspected that one of the reasons the Obama administration wants to rush the Sotomayor confirmation hearings through in mid-July is to avoid the serious political damage to Sotomayor’s confirmation of a reversal on Ricci. Ginsburg’s statements
seem to support this wisdom, from the Obama administration’s point of view, since the Ricci decision appears to be headed for release after mid-July.

Although I will concede that Ginsburg's comments could lead to the concerns held by Jacobson, for the following reasons, I believe that his worries are unwarranted. First, the Ricci decision will probably appear among the last cases this term because it, like the Voting Rights Act case, presents challenging legal issues that will deeply divide the Court. Although much of the public discourse surrounding Ricci portrays it as a slam-dunk case wrongly decided by the Second Circuit panel (that included Sotomayor), the law is, in fact, much more complicated than this public discourse acknowledges.

It is not uncommon to find difficult and divisive cases among the final entries by the Court. Grutter v. Bollinger and Gratz v. Bollinger, two closely divided and important affirmative action cases, were decided on June 23, 2003. Last year's 5-4 ruling in the Second Amendment case Heller v. District of Columbia was issued on June 26. And the Court released its 5-4 ruling upholding the Boy Scouts of America's discriminatory policy prohibiting membership by gays and lesbians on June 28, 2000. This is not a scientific study. Instead, I am simply attempting to demonstrate that in my experience, it is not uncommon for the Court to decide divisive and important cases near the end of the June. Accordingly, the fact that Ricci presents complicated legal and factual questions that divide the Court could explain why the Court will decide it near the end of the current term.

Jacobson believes that the Court could delay issuing a ruling in Ricci until late July. But if the Court goes on recess at the end of June, as is customary, then the Ricci decision will probably emerge in the next two weeks -- not in July.

Furthermore, I doubt that the Supreme Court justices have attached as much importance to Ricci as Sotomayor's political opponents. First, because Sotomayor has voted on thousands of cases, isolating one and trying to make it a critical element in an evaluation of her fitness for the bench seems arbitrary and irrational. Also, because the law in this area is close -- as demonstrated by the divided en banc decision -- the effort to use this case in order to defeat Sotomayor's nomination is pretty weak.

Finally, if, as Ginsburg suggests, this case is among a slew of forthcoming 5-4 rulings, then 4 Supreme Court justices, 7 Second Circuit judges (including Sotomayor), and one Federal District Judge will have all voted against Ricci and in favor of the City of New Haven. This breakdown does not support conservative arguments that cite to Ricci (and its potential reversal) in order to portray Sotomayor as a wayward judge who is incompetent and unable to apply the law correctly. Instead, the number of judges who could potentially agree with Sotomayor provides further evidence that her opponents' citation to Ricci (and its possible reversal) is merely a game of politics -- rather than an honest discussion of the legal issues the case presents.

PS: Although I doubt that the Supreme Court is playing confirmation politics, I believe that the Democrats sought a mid-July date for the start of Sotomayor's confirmation hearings because that would allow two weeks for any fallout over Ricci to subside.

Rosen Writes on Race and Sotomayor

Jeffrey Rosen's first analysis of Supreme Court nominee Sonia Sotomayor sparked very heated responses. I described his article as a "hatchet job," and many other bloggers and media joined the fray. Rosen subsequently distanced himself from the original essay.

Now, Rosen has shifted gears -- mirroring a evolving approach by Republicans who oppose Sotomayor. Rosen's latest work on Sotomayor analyzes her views on "race" and "gender," rather than her purported intellectual shortcomings and temperament. In a Time article, "Where Sonia Sotomayor Really Stands on Race," Rosen primarily examines matters that have already received a tremendous amount of airplay. For example, he discusses the Second Circuit ruling in Ricci v. DeStefano, a speech Sotomayor delivered at the University of California at Berkeley, and a SCOTUS blog analysis of the numerous race cases Sotomayor has decided. Based on this review, Rosen concludes that:

An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways.

I agree with this conclusion. Nothing in the cases Sotomayor has decided or the speeches she has delivered suggests that she is a radical on issues of race. Instead, Sotomayor exhibits nuance -- a claim I made weeks ago after reviewing the entirety of her Berkeley talk. Accordingly, I am glad to see Rosen approach the issue with the complexity that Sotomayor (and the public) deserves.

One-Sided Analysis of O'Connor and Ginsburg Position on Gender
Despite my general approval of his new article, there are a few moments where Rosen's analysis lacks depth. For example, Rosen, like many other commentators, cites quotations by Justice Ginsburg and Justice O'Connor which suggest that these two women view gender as irrelevant to judging and to law. Rosen's use of these comments, however, distorts the complexity of Ginsburg's and Sotomayor's views on the subject of identity and judging.

As I have argued several times on this blog, Ginsburg and O'Connor have made statements in judicial opinions that contradict the "gender neutral" quotations that Sotomayor's detractors frequently cite. For example, in J.E.B. v. Alabama, Justice O'Connor agreed that prosecutors could not use peremptory challenges to exclude potential jurors based on sex. O'Connor, however, wrote separately to emphasize that gender remains relevant in law:

We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

O'Connor also urged the Court not to extend J.E.B. to private lawyers because she wanted them to have the opportunity to maximize the number of women on juries for cases raising issues such as sexual harassment.

Furthermore, in Grutter v. Bollinger, O'Connor wrote the lead opinion which held that the University of Michigan law school had a compelling reason for wanting racial diversity: enhancing "viewpoint" diversity and the robust exchange of ideas in the classroom. O'Connor's opinions in J.E.B. and Grutter discredit the idea that she does not believe that race and sex matter. Rosen and others who continue to hold O'Connor (and Ginsburg) out as women who discount gender's relevance have failed to interrogate arguments that undermine their simplistic portrayals (on Ginsburg, see: Sotomayor's Opponents Apply Racial and Gendered Double-Standard).

Analysis of Death Penalty and Race
Rosen also contends that Sotomayor's position on race and the death penalty could impact future caselaw. Apparently, Sotomayor linked the death penalty with racism while she was a prosecutor for the State of New York. Rosen asserts that: "The court rejected that claim in 1987, but Sotomayor might be sympathetic to it." This statement, however, simplifies the Court's highly criticized 1987 ruling in McCleskey v. Kemp (which I have discussed on this blog). In McCleskey, a closely divided (5-4) Court rejected the petitioner's argument that Georgia applied the death penalty in a racially discriminatory fashion. Even if the "sophisticated" statistical analysis McCleskey introduced into evidence proved a racial correlation, he did not show in his own case that race mattered, nor could he demonstrate that Georgia maintained the death penalty because it wanted the racial patterns to occur.

Four justices, however, dissented from the majority opinion. Also, after he retired, Justice Powell, who wrote the majority ruling, listed McCleskey as a decision he "regretted." If Powell had changed his mind earlier, a majority of the Court would have concluded that racism impacted application of the Georgia death penalty.

Rosen should also consider the position of Justice Scalia, who voted with the majority in McCleskey. Although he sided with Georgia, Scalia wrote a memorandum to the other justices prior to the ruling in which he conceded that jurors and prosecutors operate on arbitrary biases like race. Scalia, however, says that this fact is "ineradicable," and he votes to reject McCleskey's claim -- despite his own statement that he needs no additional "proof" regarding the operation of race among jurors and prosecutors. If Scalia had voted in a manner that followed the logic of his memorandum and if Powell had changed his mind earlier, then a 6-3 majority would have agreed with Sotomayor. Brennan and Marshall, who dissented, opposed the death penalty altogether.

Sotomayor's feelings about the death penalty are not extraordinary, relative to the views of other justices. Much of the analysis of Sotomayor, however, decontextualizes her comments by failing to consider the breadth of her work and by failing to consider strikingly similar commentary by other judges.

Finally, the weight of academic literature, government studies, and even Supreme Court rulings on the death penalty supports Sotomayor's conclusion. In 1990, the General Accounting Office conducted an extensive analysis of existing studies on the death penalty. After eliminating unreliable studies and controlling for nonracial factors, the GAO found a pervasive pattern of race-based application of the death penalty -- particularly in the instance of a white victim. This bias sends more whites than blacks to the death chambers (because most murders are intraracial), but it legitimizes Sotomayor's view of the death penalty. The most racist aspect of the death penalty is the lack of empathy for black murder victims. McCleskey's study showed the same pattern.

Between 1930 and the early 1970s, almost 90 percent of the individuals executed for rape were black men, and all of the victims were white. This number is unexplainable on grounds other than race, particularly given the intraracial nature of rape. The Supreme Court invalidated the death penalty for rape in 1977, on the grounds that it was a disproportionate punishment for a crime that fell short of murder. Nevertheless, in other cases, members of the Court have cited to the race and rape statistics in order to contest the lawfulness of the death penalty.

Although Rosen's latest effort on Sotomayor improves upon his initial analysis, he fails to offer sufficient context in some places. Alas, he is certainly not alone on this issue.

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Charlie Savage recently published an article in the New York Times that discusses a 2001 speech that Judge Sonia Sotomayor delivered to a Latino and Latina law student group at the University of California at Berkeley. The speech, "A Latina Judge's Voice," discusses many different perspectives on the impact of race and gender upon judges.

In her speech, Sotomayor plainly rejects the idea that a monolithic perspective defines women and people of color, and she explicitly embraces the need to divorce judging from personal experience. Nevertheless, she recognizes the limitations and difficulties associated with this aspiration. Specifically, Sotomayor argues that:

I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.

Sotomayor's comments have raised eyebrows at The Volokh Conspiracy. Blogger Jonathan Adler, for example, accepts the proposition that individual experiences inform judges' perspectives. Nevertheless, he interprets Sotomayor's arguments as embracing "the idea that judging is ultimately an exercise of power instead of judgment" and that "a judge's personal experiences are license to impose his or her preferences through an exercise of judicial power." Adler finds this idea "troubling." Adler's co-blogger Orrin Kerr believes that Sotomayor's empirical analysis of the impact of experience on judging is "unexceptional," but he finds that her normative discussion of the value of experience in judging will lead to "different conclusions" among readers.

Sotomayor's Position Is Far More Nuanced And Less Extreme Than Adler's Description of It
Sotomayor does not embrace an extreme view of judging as a battlefield of power over logic and reasoning, as Adler's description suggests. If anyone doubts this, the SCOTUS blog has posted an analysis of some of the 150 civil cases Sotomayor has authored as a court of appeals judge (a review of her criminal law opinions is forthcoming). The Supreme Court has reversed only two of her civil rulings, and the liberal justices, including Souter, dissented in both instances (By the way, the SCOTUS blog finds it peculiar that so many of Sotomayor's critics fail to cite her opinions in their work).

Rather than endorsing fatalism as Adler's analysis suggests, Sotomayor is examining the difficulty that judges encounter when they try to remove themselves from their own life experiences. Her speech demonstrates that she comes to these issues with a great deal of complexity, as a good legal theorist or jurist should. Accordingly, though Sotomayor explicitly states that she agrees that judges must neutralize the weight of their own personal experiences, she rejects the impulse to analyze this process simplistically:

I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

This passage exhibits a positive humility that so many lawyers, legal scholars, and jurists lack. Perhaps nuance is off the table in this cut-and-paste "gotcha" generation, but if people actually take the time to read Sotomayor's entire speech, they might become more impressed by her (as I am). Sotomayor's speech on race and sex is refreshingly honest and provocative, particularly for a judge on the shortlist of potential Supreme Court nominees.

Remarkably, none of the reviews of Sotomayor's speech discusses similar arguments made by other judges. By failing to do so, Sotomayor's critics do not provide an appropriate context for analyzing her comments, and as a result, they are able to portray her position as extreme and "troubling." But very esteemed judges have made strikingly similar observations concerning the role of race and gender in the law.

O'Connor and Gender Perspectives
In the case J.E.B. v. Alabama, for example, the Supreme Court held that prosecutors could not use their peremptory challenges to exclude prospective jurors based solely on gender. Justice O'Connor agreed with the decision, but she wrote separately to take issue with the notion that gender is socially irrelevant:

We know that like race, gender matters. A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. . . .Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case.. . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

Sotomayor's analysis mirrors the thoughtfulness that O'Connor brings to this issue. In particular, Sotomayor, like O'Connor, accepts the gender-neutrality mandate, but she believes that the law loses something in pursuit of this goal. Although O'Connor focuses on jurors instead of judges, given the importance of jurors to legal process -- especially in criminal law -- her analysis, if true, means that a good amount of legal decisions potentially rest on race and gender factors. Furthermore, if this analysis is true, then it suggests that judges could potentially operate on the same impulses.

O'Connor made a similar argument about race in her majority opinion in Grutter v. Bollinger, a ruling that upheld the use of affirmative action by the University of Michigan Law School, based on the school's asserted need to create viewpoint diversity. And while she voted with the majority in J.E.B, her concurrence asserts that the Court should not extend the case to cover the decisions of private lawyers. She is specifically concerned that lawyers representing women in sexual harassment and other cases related to gender would no longer have the opportunity to place a helpful amount of women on juries. O'Connor's reasoning would have carved out an explicit role for gender in legal decision making. The distinction between judge and juror in this context is meaningless.

Justice Ginsburg
As a former feminist lawyer, Justice Ginsburg has a long record of work related to gender equality. But even on the bench, Ginsburg has embraced gender as a source of diversity, and her opinions have challenged male judges for embracing gender-based stereotypes.

In United States v. Virginia, the Court invalidated VMI's exclusion of women. Justice Ginsburg's opinion for the Court, however, approvingly quotes a long list of Court precedent in order to hold open a possible role for permissible gender-based decision making:

Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .

"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . to advance full development of the talent and capacities of our Nation's people. . .But such classifications may not be used, as they once were, . . .to create or perpetuate the legal, social, and economic inferiority of women.

Sotomayor's comments mirror Ginsburg's majority opinion for the Court. Ginsburg asserts that gender has a proper place in the law -- "for celebration" rather than "denigration." Similary, Sotomayor argues that gender-based decision making is not inherently inappropriate. Instead, she believes that as a judge, she must do as "the Supreme Court suggests. . .[and] continuously. . .judge when those opinions, sympathies and prejudices are appropriate." Their positions are indistinguishable.

Justice Scalia
Even a conservative like Justice Scalia has acknowledged race-based decision making among jurors. Shockingly, Scalia believes that the Court cannot remedy these decisions -- even when a litigant's life is at stake. In McCleskey v. Kemp, the Court rejected a constitutional challenge to the Georgia death penalty. A study showed that race strongly impacted prosecutors' decisions to seek the death penalty and jurors' decisions to impose it. Race operated most severely in cases involving black defendants accused of killing white victims, but the statistics showed that any person who killed a white individual had a greater likelihood of receiving the death penalty.

The majority found that, nothwithstanding the study, McCleskey failed to prove discrimination in his particular case. Scalia voted with the majority, but he wrote a memorandum to the other justices in which he expresses a far more fatalistic view of race-based decision making than Sotomayor embraces in her speech:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Sotomayor, like Scalia, believes that race and sex impact legal decision making, but Sotomayor believes that judges have to struggle to overcome this limitation. Scalia, by contrast, acknowledges race-based decisions among jurors and prosecutors, but he would not exercise his authority as a judge to remedy the situation -- even in a life or death situation.

Justice Kennedy
Currently, Justice Kennedy is a moderate judicial icon. He is often the swing vote in the Court's 5-4 rulings. Although Kennedy receives praise for his judicial record, recently, he authored a decision that reflects very paternalistic and outmoded notions of gender -- the very type of decision making the Court's equal protection precedent prohibits. In the case, Gonzales v. Carhart, the Court sustained the federal partial birth abortion statute. Justice Kennedy's majority opinion discusses "legitimate" reasons for the law. Justice Kennedy makes the following argument about women in order to validate the law:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .

While many women certainly form love-bonds with their children, many men do as well. Some men and women, however, do not. And women decide, for many reasons, to abort pregnancies. Kennedy's nostalgic argument about the wonderment of mother and child leads him to the sweeping conclusion -- admittedly unsupported by any specific statistical evidence -- that in order to protect women from making an uninformed choice, Congress can outlaw partial-birth abortion altogether. Kennedy's analysis portrays women as unsophisticated consumers of medicine and as emotionally unbalanced.

Ginsburg's dissenting opinion uncovers the gender bias in Kennedy's reasoning:

[The majority concludes without any] reliable evidence [that]: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem". . . . The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. . . .Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety [because the statute lacks a health exception].

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . .

Though today’s majority may regard women’s feelings on the matter as "self-evident". . ., this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped. . .on her own conception of her spiritual imperatives and her place in society". . . .

Final Thoughts
Many of the examples this article provides of judges accepting the reality of race- and sex-based decision making within law concerns jurors. But court doctrines prevent judges from overturning or even inquiring about the basis of jury decisions in most instances. Accordingly, juries have a central role in law -- particularly in criminal cases. Furthermore, it would take a lot of argumentation and empirical evidence to demonstrate that these same identity categories and experiences do not impact judges, and most of the evidence, where available, seems to confirm the opposite. In fact, Sotomayor's speech cites to several empirical studies which demonstrate that in particular types of cases judges tend to reach different outcomes depending on their race or sex.

The reality of race and sex does not mean that judges discard judgment and analysis or that they abandon precedent and rely solely on force and power. Instead, Sotomayor's position acknowledges what psychologists and sociologists deem as self-evident: Decision making takes place through a prism of experience. Having diversity, rather than homogeneity, actually permits judges to isolate "fact" from identity-based biases. I applaud Sotomayor's honest reflection on this subject.

Related Readings on Dissenting Justice:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor