From aca litigation blog (which has an excellent collection of documents from the litigation over the Patient Protection and Affordable Care Act):
The most intense week of news coverage for ACA-related litigation will only become more heavily so tomorrow, as Judge Roger Vinson (N.D. Fla.) will hold a hearing on the parties' respective motions for summary judgment in Florida v. HHS. As with Judge Hudson's decision Monday in Virginia v. Sebelius, what Judge Vinson decides on the constitutional issues is, as a technical legal matter, irrelevant. His judgment will undoubtedly be appealed, and appellate review of legal questions is de novo.
Such contempt for what the district judge does — "as a technical legal matter, irrelevant." But nontechnically, there's a "political dimension" — and that matters.
[T]he more federal judges who invalidate the ACA (or a substantial portion thereof), the more traction and legitimacy those arguments gain. This not only affects current political debates about modifications to the ACA, but it also alters the context in which the Supreme Court will ultimately decide the constitutional questions. In short, the atmospherics--though only atmospherics--are important.
So district judges only matter in the dimension where they don't really belong: politics? Oh, and influencing the Supreme Court — or "alter[ing] the context" in which the Supreme Court operates? Is that not a legal matter? Or... it's a legal matter but not a technical legal matter? There's technical law and there's atmospheric law?
The district judge — in this view — doesn't have any real power. He's more like a journalist — or a law blogger — fogging up the atmosphere with feelings about what the answer ought to be — some sort of miasma that might coalesce into a context.
***
This ties back to our discussion earlier in the week — here and here — about attempts to shape legal opinion by laughing at arguments — trying to create a social context in which smart people — and the people who want to look or believe they are smart — somehow just know that they're not supposed to take certain arguments seriously.
Who needs technical law when you can do atmospheric law?
The judge is a Clinton appointee, Susan Bolton, and I remember, after it was reported or learned that she was a Clinton appointee, I remember everybody said, "Ah, but this woman, she's not a political judge. She's really not partisan judge. She's a fair judge." Oh, yeah, right. Right, right, right, right....
This judge has not ruled on the law. There is no racial profiling. We didn't make a [big] deal of it because we figure a judge is gonna look at the law, not the stupid media in making her decision. But she listened to the media. She had to ignore the high bar that was not met in staying the law. This underscores why Sonia Sotomayor should not be on the Supreme Court. This underscores why Elena Kagan should not be on the Supreme Court, because they are activists. They have no judicial temperament, judicial experience, they're not judges. Well, Sotomayor pretended to be one on TV, I guess, but she's not....
This is all reacting to the sudden news of the opinion, which he hasn't read. It's 36 pages long, and "there's no way that I'm going to be able to go through all 36 pages prior to the program ending, but I know what went on here":
[The judge has] bought the notion there was racial profiling and discrimination and all this happy horse manure that's part of the American left these days. So that's pretty much it. I guess the judge is saying it's not in the public interest for Arizona to try to defend itself from an invasion. I don't know how you look at this with any sort of common sense and come to the ruling this woman came to. But, she didn't. She's a leftist and she made an activist decision, not a judicial decision.
So... Judge Bolton just looks at the hot-button issue and emotes without attending to the text that should govern her opinion... asserts Rush Limbaugh as he takes a glance at the news of the decision and let's his feelings flow.
To quote Rush, out of context, from the middle of that rant: "Nothing, nothing in the media is real. There is nothing real. Media is not real. [Political ideology] is not real. It's all spin; it's all fake; it's all lies."
"They’re law students and legal academics. I presume that everyone there is manifestly unqualified to evaluate the scientific evidence one way or the other. It’s rebuttable. If they show me their scientific creds, I’ll listen. Until then, STFU."
Now if these comments just complained about people who write definitive-sounding op-eds or blog posts about subjects they know nothing about, I wouldn’t be responding to it here. But of course the author of the e-mail wasn’t writing an op-ed aimed at persuading the public. She was continuing a conversation with a friend. The recommendation is that non-scientists who don’t know much about the subject shouldn’t even discuss it....
[W]hat a narrow, stultifying notion of education that is. Read quietly, on your own, with no discussion with others who are interested in the subject, until you become knowledgeable enough. Only then should you feel authorized to discuss it. Only then will we be “sympathetic” should you be publicly pilloried for your e-mail to a friend that raises the question — because only then could we say that “actual science is being foreclosed” by the condemnation of you.
The law school classroom experience requires students to discuss complicated and sensitive subjects in front of other students. How on earth are we going to be able to do that if the students think there's a terrible risk in saying the wrong thing — or the right thing the wrong way?
The way most people actually educate themselves effectively, it seems to me, is very different. They get interested in a subject. They talk to friends about it. They read some more. They talk some more about their readings, perhaps especially with people who are also learning about the matter. Their friends might help correct their errors. Enlightenment might emerge in a conversation when it didn’t emerge in mere reading.
Yes. Exactly. Human culture emerges as people interact with each other. Life would be very different if it was all about reading and studying. In fact, this is why we value diversity in the classroom, so that different kinds of individuals will converse and react. We will get to a better understanding of things that way.
Now, part of that really is seeing and feeling what makes other people angry. This conversation that is so valuable can't be bland and emotionless. Emotion is a part of reasoning and learning. But what does the group do to itself? What should the law school classroom (or any classroom) be like? There is an ideal level of interaction that includes ease and care in the expression of ideas and the response to what other people are saying. I want students to debate and even argue, to get excited and even angry, but not to the point where the exchange breaks down.
Back to Volokh:
That’s supposed to be one of the joys of intellectual life. It’s supposed to be one of the advantages of life in a university, where you can find classmates who — like you — have intellectual interests beyond your narrow field of study.
My law school, the University of Wisconsin, prides itself on interdisciplinary study. We encourage students (and faculty) to import other fields of study into working within law. We like the cross-fertilization and don't see the academic disciplines walled off from each other (with the walls staunchly guarded by the experts). Do you think law should be aridly academic? Do you think cases should be argued and decided by people who are intensely specialized in the study of legal texts? If you think you do, I don't think you'd keep thinking that if we had a way to run the experiment and see the results.
Volokh himself is that computer programmer. Jared Diamond is the biophysicist.
I think the lesson here is that we should want to experience our full humanity and to understand and respect and help each other as full human beings. This is an idea that completely harmonizes with the rejection of racism.
The NYT channels criticisms of a federal judge who has involved himself in judging the fairness and adequacy of settlements in non-class action lawsuits. (In a class action, the judge is required to determine that a setttlement "is fair, reasonable, and adequate.")
The NYT article portrays the 76-year-old as having lost his bearings:
The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years...
“This is history for him,” said Arthur Miller, a professor at New York University School of Law who specializes in federal procedure. “This is an awesome responsibility. He wants to be the person who brought peace to this entire situation. He would not be human if he didn’t feel a personal interest in this.”...
Donald A. Migliori, a lawyer for survivors in airline-related cases whose settlement amounts were reduced, said that such intervention was unusual in a non-class-action suit. “It’s a very frustrating thing for lawyers,” he said. “He’s guided by a concept of fairness that’s not in the law.”...
... John Feal, who works as an advocate for the 9/11 workers through his FealGood Foundation, counters that Judge Hellerstein himself has emerged as a ground zero hero.
“The judge is now like Elvis in the 9/11 community,” he said. “For years these guys have been neglected, and now there’s someone who cares.”
... at her law school, on the internet, and in the press. Grace's statement came in email sent to 2 friends, who'd had a private conversation about affirmative action. She felt a need to extend her remarks. And at some point the email got out on the internet, and all hell broke loose:
“Here at Harvard Law School, we are committed to preventing degradation of any individual or group, including race-based insensitivity or hostility,’’ [Martha Minow, dean of Harvard Law School] wrote in a message to Harvard’s law school community.
Minow said she had met with leaders of Harvard’s Black Law Students Association on Wednesday to discuss the hurt caused by Grace’s e-mail....
... Minow called the incident “sad and unfortunate’’ but said she was heartened by the student’s apology. She added: “We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility.’’
Grace has apologized. Of course, she's sorry now. "I am heartbroken and devastated by the harm that has ensued. I would give anything to take it back." Note the passive voice: "the harm that ensued." A new way to say I'm sorry you were offended. She also says "I understand why my words expressing even a doubt [that African-Americans are genetically inferior] were and are offensive." She's learned something: This is a subject where you can't play with ideas and speculate. People get very angry, and the speaker had better be ready to deal with it. Did Dean Minow handle this the right way? One question is: Why does the dean even get involved with something one student said in private email? If the answer is because the Black Law Students Association came to her and demanded a response, then maybe the question should be why did the Black Law Students Association go to the dean for help? Why didn't the students all just argue and debate and express themselves to each other? These are Harvard students. Law students. Why not dig in and have it out and show your stuff? Why go to the nearest, biggest authority figure? Stephanie hurt me!
This sad and unfortunate incident prompts both reflection and reassertion of important community principles and ideals. We seek to encourage freedom of expression, but freedom of speech should be accompanied by responsibility. This is a community dedicated to intellectual pursuit and social justice....
Law school is a community with shared ideals. One of the ideals could be: When a student makes a point that contains what you think is an outrageous statement, unless she's been actively insulting to you, you should engage her in debate and not not expose her to a public trashing. And don't bring the dean into the fray as your champion. More from Minow:
As news of the email emerged yesterday, I met with leaders of our Black Law Students Association to discuss how to address the hurt that this has brought to this community. For BLSA, repercussions of the email have been compounded by false reports that BLSA made the email public and pressed the student’s future employer to rescind a job offer.
I was going to say that "the hurt" to Grace and her reputation was much greater than the hurt to those students who only read the email. It's not as if she shouted ugly words in their face. But now I see that the BLSA students had reason to worry that they were the ones who would look bad because they were believed to have overreacted and taken some nasty revenge. Minow may have been activated by the need to clear their reputation.
A troubling event and its reverberations can offer an opportunity to increase awareness, and to foster dialogue and understanding.
Minow tries to be even-handed and control the fallout. She frames it as a teaching moment. But what has everyone learned?
The Democrats immediately shifted into the theory that anger over the bill is simply not allowed. They merged that anger with actual violence, and they took whatever reports and threats of violence they could find and, in turn, merged them with the anger over the bill.
***
Can we identify neutral principles about anger and violence? How much free expression of anger do we accept in our opponents? When will we listen to it as part of a valuable debate? When do we stigmatize it as part of a system of violence? If the answer to the last question is whenever it serves our political interests to do so, then we are making propaganda.
The architects of the Rehnquist federalism revolution....
Go to the link for some detail on what Greenhouse likes to call the "federalism revolution."
.... were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.
But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.
Chief Justice Roberts appears particularly in tune with the exercise of national power.
Here, Greenhouse notes 2 dissenting opinions —Massachusetts v. Environmental Protection Agency, where Roberts would have saved the EPA from the state's lawsuit to force it to deal with global warming, and Gonzales v. Oregon, where Roberts would have let the United States attorney general keep doctors from prescribing the suicide drugs that were authorized by Oregon law.
Finally, Greenhouse aptly observes that even some of the Justices who favor the states in federalism decisions lose their nerve when they are confronted with "issues that people really care about." Chief Justice Rehnquist balked when he got to the Family and Medical Leave Act (in Nevada Department of Human Resources v. Hibbs) — and that case was only about whether an employee of a state could get back pay when the act was violated, not the more momentous question of whether the act was constitutional or could bind the state.
So now we have a monumental new law. Can we really imagine the Supreme Court thwarting it?
John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.
But the Supreme Court got cold feet about standing up to the will of the democratic branches of government right after Franklin Roosevelt won a big landslide election in 1936. The health care reform law followed an election that wasn't about health care reform at all. The main thing people were thinking about when they voted for Obama in 2008 was the dramatic economic crisis. There were also the 2 wars and amorphous hopes for a post-racial America.
The 2008 election cannot be read as a mandate for health care reform, especially not for the aspect of it that is challenged in the current lawsuits: the individual mandate to buy health insurance. That could not possibly have been foremost in the voters' minds. First, during the campaign, Obama spoke emphatically against it. And second, even after a year of talk about the reform, people don't really understand what the individual mandate is going to be.
There isn't a big majority of Americans who are counting on being compelled to buy insurance. There isn't even a majority — even a thin majority — of Americans who favor the health care reform as a whole, and this is even before they need to confront something that is probably going to shock and distress a lot of people who haven't studied the text of the law and have simply trusted that the government is about to give them the good things they need.
Greenhouse tries to patch this hole in her argument:
Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.
He can't talk right, but he has a vote, and he's voting against Sonia Sotomayor.
Grassley said his vote in part is based on second thoughts he has had about Souter, confirmed in 1990.
"I can say my vote for him is probably the only vote for 11 or 12 Supreme Court justices that has come back to haunt me from time to time," Grassley said. "I think Judge Sotomayor's very lukewarm answer that she gave me left me with the same pit in my stomach I had as a result of my vote for Souter."
Just as you can love someone from the bottom of your heart, you can also experience a sensation of dread in the pit (bottom) of your stomach. I don’t know whether people who mangle this common expression into “pit in my stomach” envision an ulcer, an irritating peach pit they’ve swallowed or are thinking of the pyloric sphincter; but they’ve got it wrong.
So, Sotomayor either does or does not make judicial decisions emanating from empathy and Wise Latina experience, and Grassley feels his decisions in his stomach and when they feel like the part of a fruit that he shouldn't have eaten — or when he's haunted — he votes no.
Does anybody have a clear role about anything anymore?
[Obama expresses] admiration for and no reason to doubt the fine character of either man.
But, ultimately, Obama explains on Sept. 22, 2005, a nominee's character alone is insufficient to earn his support because both men, he alleges without detailing the merits of specific cases, too often side with powerful interests over others, with large companies against individuals, with prosecutors over defense attorneys.
He says he's seeking a judge who wants to "even" the playing field and that in a private meeting Roberts agreed. But Obama states that Roberts' words are unconvincing and contradicted by his decisions. "Ultimately," Obama says, "we need [to] give more weight to his deeds than his reassuring words."
Give more weight to his deeds than his reassuring words? The funny thing is: if the American people had done that, Obama would not now be in the position to appoint Supreme Court Justices.
Let this William Warren cartoon represent what I'm calling a meme because I'm seeing it everywhere:
When a white man gets onto the Supreme Court, it's because of his legal credentials, because he got no points for diversity, but when a woman or a member of a minority group makes it onto the Court, she (or he) will be forever marginalized as an embodiment of the quality or qualities that clinched the appointment, even though excellent legal credentials were required for her to make it into the pool of finalists. Don't you see how unfair this marginalization is?
The fact that Sonia Sotomayor is female and Hispanic and that she got the nomination because of that does not nullify or degrade the legal credentials that she also has. It is wrong and unfair to say that it does.
Now, it's a separate question whether being female and Hispanic is supposed to play a part in constitutional interpretation. Both Obama and Sotomayor have made statements that suggest they believe something that many lawprofs say all the time: That a judge's background experiences and understandings play a role in answering hard questions of interpretation.
If you don't think that is true, think deeply about why you disagree. What do you know about the how human mind works that makes you think that our reasoning is abstracted from our real-world context? Don't tell me that you just feel sure that's what judges ought to do. The question is what human beings do, not what you wish they could do and would do.
And frankly, I think that if judges could reason about legal texts abstracted from the real world, they would make all sorts of intolerable, ridiculous decisions that would lead us soon enough to replace them with more practical judges. If your wish came true, it would only be temporary.
It's also a separate question whether Presidents should make Supreme Court appointments based purely on legal credentials. Is there some idea that all possible nominees could be ranked and the President ought to choose #1? Assuming some absolute rank order is possible — and I don't think it is — would you want to limit him that way? Why? What if it meant that the next 100 judges would be white males from upper middle class backgrounds? I think that would be intolerable.
"... Does the next justice have to be a woman?... The sex offender case that may trip up a frontrunner ... Ann to Obama: Appoint a strong liberal!... Is Obama trying to wriggle out of closing Gitmo?... Emily announces Double X, a women’s site that’s for men, too."
Some group of 9 individuals will say what the law is for us all. What sort of individuals do you want? Assume fine intellectual credentials and solid relevant experience. Aside from that, what sort of individual characteristics make you want to give a man or woman this immense responsibility?
Here's what Obama said after David Souter revealed his intention to leave the Supreme Court:
Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda.
He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion -- the hallmark of not just being a good judge, but of being a good person.
Feverish... that is the out-of-place word that tells us something about Obama. Souter sounds utterly cool — if anything, too cold to trust with the grand decisions of life and liberty submitted to the Court.
The key thing Obama has told us about what he wants in a Supreme Court Justice is empathy:
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
Obama — like many lawprofs — believes (or purports to believe) that emotion and engagement with real life is integral to constitutional interpretation. This is different (or certainly purports to be different) from deciding cases according to one's sympathies. But even understood that way, Obama's favorite qualification would obviously have excluded the bookish, reclusive Souter.
“What does that mean? Usually that’s a code word for an activist judge,” Sen. Orrin Hatch (R-Utah) said on ABC’s “This Week.”...
“I may have empathy for, for the little guy in a fight with a big corporation, but the law may not be on his side. So I think that’s a concern,” former Republican Party Chairman Ed Gillespie said on NBC’s “Meet the Press.”
“What I hear in President Obama’s statement is that he wants the justices of the court to try to understand the real world we live in and the impact of some of these decisions. Apply the law, but do it in a sensible fashion,” Sen. Dick Durbin (D-Ill.) said on “Fox News Sunday.”...
Obama’s comments Friday about judges needing to identify “with people’s hopes and struggles” and the reaction to those remarks seemed to cast the early debate in a way that is likely to favor Democrats — especially at a time of economic distress, when Wall Street and big corporations are widely regarded by many as a greater threat than the rulings of federal judges.
In fact, the anti-establishment attitude that powered Obama’s campaign remains strong enough that there is serious discussion of putting a nonjudge, or even a nonlawyer, on the court, which presently consists entirely of former federal appeals court judges.
“I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge,” Sen. Pat Leahy (D-Vt.), the chairman of the Judiciary Committee, said on ABC.
And who was more monk-like than David Souter?
It's funny. For years, I've heard conservatives cry "No more Souters!" But now, I'm hearing the Democrats say that too. All due respect will be paid to the retiring Justice, but he isn't what they want.
And frankly, he isn't what they should want. The Court needs a forthright liberal. And Obama is perfectly entitled to pick such an individual. Of course, this person will — as Obama said — be dedicated to the rule of law, honor constitutional tradition, and respect the integrity of the judicial process and the appropriate limits of the judicial role. But he or she will do all of this in the liberal mode. I hope to see a fine Justice who will show us how this is done.
So if our gut is best at weighty decisions, a leader ought to think, “Should we go to war? Yeah, I’m feeling pretty good about this”?
Well, here’s the big caveat, and this is maybe the main distinction between Obama and Bush. There’s been extensive research over the last few decades about the danger of certainty, about believing you’re right. What that causes the brain to do is ignore all the evidence that suggests you’re wrong. We clearly tend to filter the world to conform to our ideology, to our preconceived notions. So if I had to identify one flaw of the Bush administration, it’s not that simply Bush trusted his gut instincts or that he was a “decider.” It was that he and his entire administration fell victim to the certainty trap. And I think you saw that very clearly with the Iraq war and WMDs. They believed they knew that Saddam Hussein had them. And so they ignored lots of relevant evidence and dissenting voices telling them that there were no WMDs. It wasn’t simply his gut instincts that led him astray, it was the fact that he didn’t seek out those dissident voices. And that’s a very natural human flaw, one of the frailties of the human brain. It’s also why liberals watch MSNBC and conservatives watch Fox News. It’s nice to have one’s beliefs reinforced. But it’s dangerous when leading a country.
