Later On

A blog written for those whose interests more or less match mine.

When judges don’t know everything

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Extremely interesting column by Linda Greenhouse in the NY Times:

A name familiar from a 2008 Supreme Court death penalty case was back in the news the other day. A federal district judge in New Orleans granted a new trial to Patrick Kennedy, convicted in 2003 of brutally raping an 8-year-old girl. He has been serving a life sentence in a Louisiana prison, spared the death penalty by a Supreme Court ruling that capital punishment for the rape of a child, unaccompanied by murder, violates the Eighth Amendment’s prohibition of cruel and unusual punishment.

Justice Anthony M. Kennedy’s majority opinion placed the emphasis on “unusual.” Only five states in addition to Louisiana made the rape of a child a capital offense, he noted, adding that when Congress last revisited the federal death penalty, in the mid-1990s, it failed to add child rape to the list of federal capital crimes. Capital punishment for the rape of a child was contrary to society’s “evolving standards of decency,” the majority concluded.

It was a high-profile case that divided the justices 5 to 4. But the ink was barely dry on the decision, Kennedy v. Louisiana, when it emerged that the court’s factual premise for taking the defendant off death row was, to put it charitably, incomplete. Standards weren’t evolving in only one direction, it turned out. Less than two years earlier, Congress had in fact added child rape to the list of capital offenses in the military justice system.

How could the justices not have known this? Simple: no one told them — not Louisiana, which vigorously defended its law; not the other states that supported Louisiana’s argument; and not the federal government, which didn’t even file a brief in the case. The court and all the parties to the case were embarrassed. Would the knowledge have made a difference to any of the five justices in the majority, changing the outcome? Probably not, but who knows? Louisiana asked the court to reconsider its decision, but the justices turned the state down, acknowledging the late-discovered fact in a new footnote while dismissing it as irrelevant. The defendant subsequently filed a new federal court appeal, renewing an earlier challenge to the makeup of the original grand jury that indicted him in 2001. Two weeks ago, federal District Judge Helen Ginger Berrigan gave the state 180 days to either re-indict Mr. Kennedy or release him.

I can’t help thinking about the Louisiana case, with its missing fact, in conjunction with the current contretemps over a single sentence in Judge Richard A. Posner’s latest book, “Reflections on Judging.” In what Judge Posner now says he considered little more than an “entirely innocuous” throwaway line, he wrote that “I plead guilty to having written the majority opinion” for his appeals court rejecting a constitutional challenge to Indiana’s voter-identification law. Since the text of the opinion itself identified Judge Posner as the author when the United States Court of Appeals for the Seventh Circuit issued it in 2007, a confession to authorship six years later would appear rather more unnecessary than newsworthy.

Of course, what made it newsworthy and even controversial was the context in which the line appeared, amid the political debate over the new barriers to voting that are sweeping the country, propelled by Republican governors and state legislatures.

Judge Posner’s opinion was the first to uphold the new generation of voter-ID laws, and it was promptly affirmed by the Supreme Court. If Richard Posner, a leading public intellectual with conservative credentials (tarnished as they may be by his persistent criticism of Roberts court decisions) as well as one of the country’s most influential federal judges, now regrets his decision, doesn’t that delegitimize the Republicans’ entire vote-suppression project?

That may or may not be reading too much into Judge Posner’s “confession” and subsequent elaborations. His basic point (and a hardly surprising one, given abundant evidence of its validity) was that Supreme Court justices and other federal judges have too often plunged headlong into election-law cases like Citizens United (of which he is critical) without fully grasping the consequences of their decisions. This is what he pleads guilty to.

One could argue, as some have, that there was plenty of evidence from which Judge Posner might well have inferred back then what he seems to have concluded since: that voter-ID laws are part of a cynical political strategy that comes cloaked in the mantle of good government. My point here isn’t to debate the merits of either voter-ID or capital punishment for child rape, but rather to ponder the intriguing questions common to both cases: what are the sources of judicial knowledge? How do judges — especially appellate judges, who don’t hear witnesses or take testimony but must rely on the record compiled in the courts below — learn what they need to know? And, of course, how do they — or any of us — choose what to make of the knowledge they have?

In the debate over voter-ID requirements, no one disputes that there is almost no evidence — emphasis on evidence — of in-person voter fraud in this country. People just aren’t showing up at the polls claiming to be someone else. Rather, the dispute is over what conclusion to draw from the absence of evidence. A phony solution in search of a nonexistent problem? That’s how it looks to me, but I recognize that there’s another end to the telescope. During the Supreme Court argument in the Indiana case, Chief Justice John G. Roberts Jr. maintained that the very lack of evidence demonstrated the seriousness of the problem. “It’s a type of fraud that, because it’s fraud, it’s hard to detect,” he said.

When the court went on to affirm Judge Posner’s decision, it was Justice John Paul Stevens who surprised many people by writing the majority opinion. As a lawyer, Justice Stevens had made an early reputation in his hometown of Chicago — ground zero for election fraud — by investigating political corruption. Could that personal history have had anything to do with how he struck the balance in the Indiana case? (Justice Stevens told The Wall Street Journal that he still thinks his opinion was correct based on the information available to the court at the time, but that “as a matter of history,” Justice David H. Souter’s dissenting opinion “was dead right.”)

My Yale Law School colleague Dan Kahan, through his Cultural Cognition Project, uses the lens of psychology to study how people’s group identification and social networks influence their receptivity to scientific information, for example, evidence of climate change. It’s hardly far-fetched to assume that the same dynamic applies to judges across the spectrum of evidentiary questions, even those judges who try to put partisanship aside and think they have succeeded.

Isn’t there such a thing as a good old-fashioned fact that a judge can hang his or her hat on — or is that an outmoded premise in this postmodern world? . . .

Continue reading.

Written by Leisureguy

31 October 2013 at 10:33 am

Posted in Government, Law

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