Judicial Independence in America

A look at the conventions of judicial independence in the United States

Although American constitutional thought has long ignored the fact that conventions are scarcely less important to the operation of the Constitution of the United States than they are to Westminster-type constitutions, this blind spot is being removed. Tara Leigh Grove’s forthcoming article on “The Origins (and Fragility) of Judicial Independence” under the US Constitution is largely, and deliberately, a story of conventions, and a well-told one. Although Article III of the Constitution entrenches some protections for judges ― the tenure and salary guarantees that were already protected in Great Britain by the Act of Settlement 1701 ― prof. Groves shows that much of the architecture of judicial independence that observers of the American judiciary take for granted has no obvious foundation in the constitutional text. It is, instead, built of convention.

Prof. Grove examines three ways in which judicial independence is respected in the United States that “are so deeply ingrained in our public consciousness that it rarely
occurs to anyone to question them”, and that they have assumed the status of “self-evident” “truths”:

judges are entitled to life tenure and salary protections, and cannot be removed outside the impeachment process. Political actors must comply with federal court orders. And “packing” the Supreme Court is wrong. (1)

There is, prof. Grove argues, nothing self-evident about any of this. The constitutional text was once thought to permit these violations of judicial independence. But then ― quite recently ― “political actors built the conventions” that make them well-nigh unthinkable. (2)

More specifically, prof. Grove shows that American political actors long thought that it was permissible to remove judges from office by abolishing their courts (except the Supreme Court itself, on the basis that it alone was explicitly mentioned in the constitution). There were a number of attempts to do so, some of them successful:

Through at least the early twentieth century, although the abolition of federal court judgeships was controversial, it was by no means considered “ridiculous” or “off-the-wall”. (13)

And yet over the course of the last century that is exactly how this idea came to be treated. Indeed the very fact that judges had in the past been removed because their courts were abolished was forgotten. Proposals of such measures are now met with consternation and fierce resistance ― as befits violations of conventions.

Similarly, although there now exists “widespread and bipartisan consensus that political actors must abide by federal court orders”, (17) this too is a relatively recent constitutional innovation. While some scholars still suggest that there is, occasionally, room for executive resistance to judicial decisions, political actors have abandoned this view, which they had long held. Prof. Grove traces this change of political heart to the aftermath of  desegregation decisions, showing that even those politicians who, like President Eisenhower, had originally seemed to accept resistance to court orders as legitimate then came to condemn it. From then on, “subsequent political actors did not want to be equated with the segregationists who led the ‘massive resistance’ to” the cause of civil rights. (25)

Last but not least, “[t]here is a strong norm today against … modifying the [Supreme] Court’s size in order to alter the future course of its decisions”. (29) Yet the text of the US Constitution says nothing about the number of judges there must be on the Court (except that there must be a Chief Justice), and historically, Congress has decreased and increased it on a number of occasions, “often … in part for partisan reasons”. (30) Indeed, the convention against doing so has not been around for as long as one might think. Prof. Grove points out that although Franklin Roosevelt’s notorious “court-packing” scheme  aroused “strong opposition”, it “also had considerable support in Congress and came close to passage”. (29) It is only “starting in the late 1950s”, (34) some time after a proposal for a constitutional amendment fixing the Supreme Court’s size failed to pass, that the convention against court-packing solidified ― to the point where the term “court-packing” became an all-purpose epithet.

Prof. Grove argues that the conventions of judicial independence are “historically contingent”; they could have been different now, and they might be different in the future. She notes that there is no convention preventing the enactment of legislation denying the federal courts, or specifically the Supreme Court, the jurisdiction over certain types of cases, although in her view “the protection for judicial independence would be far stronger if there were a convention leading officials not even to propose, much less seriously consider, jurisdiction-stripping bills”. (42) Why, though, is there no such convention, while there conventions against firing judges by abolishing courts, disobeying court orders, or court-packing? Prof. Grove attributes the difference to “narratives” ― to the way lawyers and officials (many of them, of course, lawyers by training) ― were told the stories of the various forms of interference with the courts and re-told these stories in their turn. Conventions developed against those practices that the “narratives” condemned, and against that which it did not.

Prof. Grove concludes with a question that has caused considerable difficulty to courts and scholars in the Commonwealth: that of the relationship between conventions and law. Could it be the case that “the norms protecting judicial tenure and requiring obedience with federal court orders have become so well-accepted that they have transformed into binding rules of law”? (54) Prof. Grove says that she “do[es] not foreclose the possibility that conventions may over time crystallize into legal rules”, thought “the precise mechanisms by which such crystallization may occur” remain uncertain. (54) She notes that ultimately both conventions and legal rules can change in response to a changed political environment ― and cautions that this change need not always be for the better.

Prof. Grove’s historical account is worth the attention of anyone interested in American Constitutional law. Her demonstration of the importance of conventions in the operation of the constitution ― small c ― of the United States should provide an effective counter-argument to claims of exceptionalism, and resulting superiority or inferiority (depending on the speaker’s substantive views), made both in America and in the Commonwealth. “Written” constitutions do not settle all constitutional questions, nor do they prevent the development of conventions that restrict the discretion that constitutional actors might seem to enjoy under the terms of black-letter constitutional law, whether authoritatively enacted or common law.

Prof. Grove’s account leaves a number of important questions unanswered ― not only that of the interplay between convention and law and the possibility of “crystallization”, but also that of the role of “narratives” in relation to conventions. Saying that narratives determine whether conventions do or not arise seems to beg the question of why narratives develop in one way rather than another, and perhaps to obscure the role of constitutional principles that underpin conventions in shaping those narratives. Perhaps prof. Grove might have paid more attention to what the principle of judicial independence means ― and, for instance, to whether it actually requires restrictions on legislatures’ ability to limit courts’ jurisdiction. (It seems to me that some legislative control over jurisdiction is necessary for the good administration of justice, and that removal of discrete elements of a court’s jurisdiction will not always, perhaps rarely, interfere with its independence.)

But these are friendly criticisms ― one cannot expect a single article to fully tell a story as complex as that which prof. Grove begins. I hope that she and/or her colleagues will take it up. Constitutional theory can only be enriched if American scholars pay constitutional conventions the attention they deserve. Prof. Grove makes a very valuable contribution to this endeavour.

Inappropriate Remarks

Justice Abella should be criticized, not praised, for her comments on Donald Trump

In a widely noted (for example in this report by Colin Freeze for the Globe and Mail) commencement address given in the United States, Justice Abella has castigated “narcissistic populism” and, more broadly, what she perceives as the abandonment of a global commitment to human rights, independent institutions, and the Rule of Law. While the academics quoted by Mr. Freeze, and others, are either cheering Justice Abella on or at least think that these comments were acceptable, I disagree. Mrs. Abella would be perfectly free to engage in political commentary, but Justice Abella is not. That she did not recognize this calls her judgment into serious question.

It is quite obvious to anyone who has had the misfortune of following the news in the last year that the “narcissistic populism” quip refers to Donald Trump. Sure, Justice Abella did not utter his name. She did not need to. Populism in general is a broad (and worrying) phenomenon. But the reference to narcissism is a pointed one. Justice Abella was not speaking about Bernie Sanders, or even Marine Le Pen. (Her other remarks presumably did not only concern Mr. Trump ―  though I doubt she was thinking about Mr. Sanders.)

Unlike Justice Ginsburg of the US Supreme Court, who criticized Mr. Trump (by name) last year (at a time when his election to the presidency seemed impossible), Justice Abella wasn’t commenting on the potential head of a branch of government co-ordinate with that of which she is part. To that extent, she wasn’t compromising the separation of powers. Yet that doesn’t mean that her remarks were compatible with her judicial role. The United States are a relatively frequent litigant before the Supreme Court of Canada. Since Justice Abella’s appointment, they have been a party to seven cases decided on the merits, and to almost 20 additional leave applications in which she was involved. (These are mostly, though not quite exclusively, extradition matters.) There is no particular reason to think that there will no more such cases while Justice Abella remains on the Court. And so long as she does, and Mr. Trump remains president of the United States, it seems to me that questions about Justice Abella’s impartiality could be raised.

When I criticized Justice Ginsburg in a blog post for the CBA National Magazine last year, I noted that those whose unbridled admiration for her encouraged her injudicious behaviour had to take some of the blame:

As [Josh] Blackman has pointed out, “[o]ver the past few years, [Justice] Ginsburg has been showered in … sycophantic adoration” by those on the political left who see her as the pre-eminent judicial champion of their values. Prof. Blackman hypothesizes ― correctly, I suspect ― that the adulation got to Justice Ginsburg, to the point that she came to think that “she could do no wrong.” She may also have come to think that the public stood in dire need of her warnings about Mr. Trump, even though, as Paul Horwitz has observed, “her remarks [were] essentially conventional, unexceptional, and banal.” While I do not wish to absolve Justice Ginsburg, I think it is important to also blame those whose flattery has at least contributed to her developing such a high opinion of herself. Four centuries ago, Francis Bacon wrote that “those, that engage courts in quarrels of jurisdiction … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.” The same goes, I think, for those who encourage judges to overstep their proper role in extrajudicial contexts. It is perhaps unfair to call parasiti people among whom sincere admirers no doubt outnumber self-interested sycophants, but the sincere contribute no less than the two-faced to corrupting the very person they love so much. There is nothing wrong with admiring a judge, or for that matter a politician. But if you well and truly wish him or her well, never tell yourself, and by all that you hold dear, never tell him or her, that the person you admire can do no wrong. Coming to believe that one can do no wrong ensures that one will.

The same lesson applies, I suspect, in the case of Justice Abella. As Mr. Freeze notes, she has become something of a judicial celebrity, and indeed “[e]arlier this year, Justice Abella received a ‘global jurist of the year’ prize.” I am afraid such things are not very good for sitting judges. Justice Abella’s injudicious remarks not only deserve criticism, but also show that she needs it.

Accounts of Accountability

It’s important to keep politicians accountable. But what follows for regulation of money in politics?

Freedom of expression is necessary, among other things, to foster political accountability in a democracy. On that much we can surely all agree. But what follows from the link between the freedom of political discussion and our interest in holding our elected representatives to account? Specifically, when it comes to regulating money in politics, should a healthy concern with maintaining accountability cause us to favour more restrictions, or fewer? The answer to that question is, to say the least, not obvious, as a comparison between two judicial opinions linking democratic accountability and freedom of expression but coming to opposite conclusion shows.

In McCutcheon v Federal Election Commission, 134 S Ct 1434 (2014), the majority of the U.S. Supreme Court struck down limits on the total amount of money an individual is allowed to donate to candidates at an election. (The limit on the amount that can be given to an individual candidate was not at issue.) In dissent, Justice Breyer drew on the value of accountability to justify the limitation of the role of money in politics. He noted that “political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” (1467) The protection of the freedom of expression, he continued, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (1467; emphasis in the original) According to Justice Breyer, the undue influence of substantial pecuniary contributions to politicians, which he characterized as

[c]orruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. (1467)

In other words, to keep politicians accountable to the voters, it is necessary to limit the influence of money on them, and in this particular case to uphold the constitutionality of limits on donations.

Compare this with the opinion of Australian High Court’s Chief Justice Mason in the case of Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106. At issue were provisions eliminating the ability of both political parties and candidates and of “third parties” to pay for electoral advertisements in broadcast media. (Parties represented in Parliament were given some free time for their advertisements.) Chief Justice Mason also extolled the virtues of democratic accountability and emphasized the link between the actions of the governors and the opinions of the governed:

the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government. [37]

Democratic accountability thus required that the freedom of expression be protected (even in the absence of an explicit guarantee in the constitutional text):

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. … Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. … Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. [38]

So far, so similar to Justice Breyer. But from this, Chief Justice Mason went on to reason that the restrictions on electoral advertising at issue could not stand, because they were incompatible with the freedom of political communication, and thus undermined democratic accountability. More money in politics, not less, was the way to keep politicians accountable to the people.

Now, contrasting these two opinions in this way is oversimplifying things. The issues in McCutcheon and in Australian Capital Television were somewhat different. The former concerned the giving of money to politicians; the letter, spending both by politicians and by civil society actors. Although both come within the general category of “money in politics” concerns, it is possible to think that one but not the other can be strictly regulated. Besides, to some extent at least, both McCutcheon and Australian Capital Television were about means, not just ends. It is possible that, confronted with different regulations, both Justice Breyer and Chief Justice Mason would have reached different conclusions by reasoning from the same values.

That said, we know that the same faction of the U.S. Supreme Court that dissented in McCutcheon was also favourable to restrictions on electoral speech by (at least some) members of the civil society in Citizens United v Federal Election Commission, 558 US 310 (2010). And while there might be a point at which Justice Breyer would have balked at the limitation of permissible financial contributions to politicians, it is not clear where that point lies. Conversely, although Chief Justice Mason suggested that a less restrictive set of regulations might have been compatible with the freedom of political communication, existing regulatory schemes, such as Canada’s or New Zealand’s, would likely not have made the cut, and I struggle to imagine one that would. The disagreement is not only, and I suspect not mainly, about means. It is driven to a substantial extent by conflicting interpretations of the value of accountability.

I’ll leave to another post (maybe, sometime) a discussion of who, if anyone, of Justice Breyer and Chief Justice Mason is right. My point here is rather that appeals to values, and even to generally accepted truths (such as the importance of free political expression to democratic accountability) are unlikely to settle the difficult disputes that arise in the law of democracy. The values may be shared at a sufficiently high level of abstraction, yet understood so differently as to lead those who hold them to starkly different conclusions.

Selfie Slow-Down

I have already blogged about one American judicial decision on the constitutionality of a “ballot selfie” ban, which has since been upheld on appeal by the Court of Appeals for the 1st Circuit. And I have also written about the history of the secret ballot, which in my view explains why measures to protect ballot secrecy ― including bans on something that might at first glance appear quite innocuous, like a selfie showing for whom a person has voted ― are actually more important than they seem. Another American decision issued last week, this one by the Court of Appeals for the 6th Circuit, provides some additional food for thought on this issue.

Much of the discussion in Judge Sutton’s majority opinion in Crookston v Johnson is procedural. The case came up as an application for a preliminary injunction preventing the enforcement of Michigan’s prohibition on “exposing marked ballots to others”, (1) and Judge Sutton concludes that it is simply too late to grant one now in anticipation of the elections to be held on November 8. The people who will be running the election have already been trained and have received specific guidance on photography at the polling stations. Changing the rules at this point would create unnecessary confusion. So Judge Sutton does not rule on the merits of the case, which will be assessed later, assuming the applicant still cares. (This situation is reminiscent of the Canadian cases about election debates, which are invariably brought on an emergency basis when the debates are set up, and invariably abandoned before a full merits hearing once the election has taken place.)

But Judge Sutton does make some comments that bear on the merits of the dispute, and, although preliminary, these comments strike me as quite sensible and interesting. One observation is that

many Michigan voting stalls … are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene. (4)

My memory of Canadian voting stalls is a bit hazy ― I skipped the last election because I couldn’t tell which of the parties was worst ― but something like that might be true of them too. And indeed, even if it is not in any given case, it is worth thinking about whether our voting arrangements must actually be planned so as to cater to the “needs” of people wishing to snap a selfie.

Another practical point is that allowing ballot selfies could create a “risk of delay” at the polling stations, “as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile”. (5) In a brief concurrence focusing entirely on the issue of delay, Judge Guy makes the additional point that “with digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.” (7) He wonders, too, whether “the allowance of taking a selfie also include use of the ubiquitous selfie stick”. (7)

And then, there are the issues that I have already discussed here ― whether the absence of evidence of ballot selfies’ harm shows that there is no reason for banning them or, on the contrary, demonstrates the effectiveness of the bans as a prophylactic measure. Judge Sutton clearly thinks that the latter is the case. Moreover, “[t]he links between [voter corruption and intimidation] and the prohibition on ballot exposure are not some historical accident; they are ‘common sense'”. (5, quoting US Supreme Court precedent.) Chief Judge Cole, dissenting, takes the contrary view, as have other American courts that have addressed selfie bans.

For own part, without expressing an opinion as to which of these views is correct as a matter of U.S. law, I have more sympathy for Judge Sutton’s. While I have been dwelling on the importance of evidence in constitutional adjudication for some time now, and critical of restricting rights on the basis of assumptions no later than yesterday, the evidence is actually there, albeit that it is mostly historical. Moreover, a court should be able to pronounce on the issue of delay without waiting for an “experiment” to take place. Common sense can be an unreliable guide to adjudication, but ― absent evidence to the contrary ― courts should be able to rely on it sometimes.

Prohibitions of ballot selfies might seem counter-intuitive or even quaint. In the United States, they run counter to the very strong tradition of virtually untrammelled freedom of expression. While I sometimes wish that Canadians took more inspiration from that tradition than they do (for example when it comes to the criminalization of “hate speech”), this is one instance where a more even-handed weighing of competing interests might be in order. Judges Sutton and Guy provide a useful reminder of what some of these interests are.

R.I.P., Antonin Scalia

How I will remember him

I don’t know if Justice Antonin Scalia, of the U.S. Supreme Court, read, or liked, Bulgakov’s The Master and Margarita ― it was, no doubt, much too unorthodox for him, although he would at least have agreed with its insistence that we at least believe that the devil exists. But as Bulgakov’s devil points out, “man is mortal, but that alone would only be half the trouble. What’s bad is that he sometimes is suddenly mortal, there’s the rub!” Justice Scalia himself has proved suddenly mortal, and it is quite a shock.

He was a larger-than-life figure, the sort of person who left no one indifferent, about whom everyone had an opinion ― not infrequently a very bad one. I wrote once that “Justice Scalia is often snarky, but he gets as good as he gives.” And no doubt there will be much criticism in the coming hours and days, as there will also be much praise. For my part, though I have criticized him in the past, I want now to offer praise, even if it is of an anecdotal sort.

Back in 2007, Justice Scalia came to Montreal, to debate his Canadian colleague, Justice Binnie, about the role of a judge in a democracy ― which they both took to mean constitutional interpretation. It was a remarkable debate, though sadly it seems not to be available online anymore (NB: see the update below). Bob Rae, who moderated, remembers it too, as do others who were there, and even some who were not. And, as Emmett Macfarlane has already mentioned, after the debate, Justice Scalia lingered in the room where food and drink were being served ― and spoke to students who quickly surrounded questioned him. I was there, and even got some questions in ― something about constitutional conventions. I was sure, and still am for that matter, that I was right and he was wrong, but he certainly taught me a good lesson that day about debating a judge without being in more-than-full command of all the facts. It’s not a good idea! I wasn’t the worst though. Almost all of the questions that were being asked in that scrum were quite hostile ― George W. Bush was still president, and many were determined to blame Justice Scalia personally for Bush v. Gore. And the thing is, he surely had to know that Canadian students would not take kindly to him ― yet not only did Justice Scalia not try to avoid talking to us, but he spent a good 40 minutes at it, and seemed to rather enjoy the whole business. I must confess, he won me over that evening ― as a person, if not as a jurist.

Of course, he was also often an abrasive man. He could be brutally unkind to his fellow human beings in his opinions, judicial and extra-judicial, as Eddie Clark points out. Still, the image I will retain of him is that of a man who was willing to talk to those who disagreed with him, debate them, and be generous to them. His friend and ideological opposite Justice Ruth Bader Ginsburg might agree with this. At a time when refusing to treat opponents with the least amount of class, and even to talk to them, are often seen as normal, I hope that this memory of Justice Scalia will prove more powerful than the bitterness and divisiveness for which he will also, and alas justly, be remembered.

UPDATE: Mark Mancini, who is manifestly much better than I at searching the CPAC archives, has found the video of the Binnie-Scalia debate. It is here, and you have to click on the right-most link below the box. It is, as he says, well worth watching.

FURTHER UPDATE: Many reactions to the news of Justice Scalia’s death have already been published. There is no point to cataloguing them all, but I will note those by Moin A. Yahya, Michael Dorf, Noah Feldman, and Cass Sunstein, because they all make the same point as I tried to about Antonin Scalia the human being ― that he was generous and happy to talk to people who disagreed with him, including people who were vastly junior to him in years and distinction. (Profs. Feldman and Sunstein also offer very insightful assessments of Justice Scalia the jurist.)

What the Judge Googled for Breakfast

A recent decision of an American appellate court provides a vivid illustration of the complexity of the issues surrounding the courts’ treatment of scientific information that I have been blogging about here. The case is a prisoner’s suit against the medical staff at his prison, alleging that their refusal to let him take medication against reflux oesophagitis prior to his meals ― rather than on a schedule seemingly arbitrarily determined by them, or indeed at all ― amounted to cruel and unusual treatment. In Rowe v. Gibson, a divided panel of the federal Court of Appeals for the 7th Circuit dismissed the defendants’ motion for summary judgment in their favour. The main opinion, by Judge Richard Posner, is most interesting for its liberal citation to online sources not in the record ― and for addressing directly the objection’s to this practice.

* * *

The defendant doctor, who apparently doubled as an expert witness (despite not being specialized in the sort of medical problems the plaintiff was suffering from), claimed that it did not matter when the plaintiff took his medications. Indeed, at some point shortly after the plaintiff sued, he came to the conclusion that it did not matter whether the plaintiff took his medications at all, and so refused to prescribe them ― though he relented a month later, as a “courtesy” to the plaintiff. (A particularly gruesome detail: the prison authorities consistently stressed that the plaintiff was free to buy the medications from the commissary, if he wanted to take them on his own schedule ― but he didn’t have even a fraction of the money this would have required, and wouldn’t have been allowed to buy more than a few days’ supply per month anyway.) And since the plaintiff did not supply an expert opinion of his own, the doctor’s stood uncontradicted ― until Judge Posner took to the internet.

What Judge Posner found there, crucially, is that the doctor’s assertions about the effectiveness of the medication at issue were flatly contradicted by the information provided by the drug companies manufacturing the medication, as well as other sources of medical information. The defendants’ expert suddenly looked incompetent, self-interested, or both. There was, after all, a genuine issue for trial.

But was it appropriate for Judge Posner to start looking for the medical information that the plaintiff did not provide him with? The judge makes no apologies: “When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness.” (13) This is particularly so when there is little relevant information in the record, and when it is only used to establish the existence of a genuine issue for trial, not to determine the outcome of the case.

And there is more. After a rather bizarre reference to the Magna Carta, Judge Posner asks:

Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? (14)

And further:

[T]o credit [the doctor’s] evidence … just because [the plaintiff] didn’t present his own expert witness would make no sense—for how could [he] find such an expert and persuade him to testify? He could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed “verifying medical evidence” to support his claim. The district judge denied both requests. (15)

In short:

It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. (16)

Besides:

[H]ow could an unrepresented prisoner be expected to challenge the affidavit of a hostile medical doctor (in this case really hostile since he’s a defendant in the plaintiff’s suit) effectively? Is this adversary procedure? (17; emphasis in the original)

(Sorry for the block quotations, by the way. With Judge Posner, the temptation irresistible.)

Judge Posner adds that the trial court should consider appointing a lawyer for the plaintiff and a neutral expert when it hears this case ― though he does not order it, and acknowledges that the budgets both of the court and of the defendants (who might be made to pay for it all) are limited.

Judge Hamilton, dissenting in part, is not impressed with Judge Posner’s approach to this case. For him, it is “an unprecedented departure from the proper role of an appellate court [that] runs contrary to long-established law and raises a host of practical problems.” (29) He faults Judge Posner for “hav[ing] created an entirely new, third category of evidence, neither presented by the parties nor properly subject to judicial notice.” (37) Although Judge Hamilton acknowledges that “[w]hen a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable,” (39) he thinks that Judge Posner’s remedy is worse than the disease. For one thing, it “turns the court from a neutral decision-maker into an advocate for one side.” (40) For another, it is not clear when or how the courts are supposed to supplement the parties’ research with their own. Judges, says judge Hamilton ― relying on an old, but on-point, quotation from Judge Posner himself ― lack the resources for acting as their own experts, and should not try.

There is still more to the opinions, including a brief concurrence arguing that the internet research is not as central to the majority opinion as it might seem, and an “appendix” by Judge Poser responding to Judge Hamilton’s critique. If you want more excerpts, Josh Blackman’s has got them. For my part, I close with a few comments.

* * *

A few months ago, I blogged about a very interesting paper by Lisa Kerr about challenging the prison authorities’ assertions of expertise in order to secure prisoners’ rights. It was, I said, “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” The reason for the epithet was that Judge Posner has long been an ardent advocate for more fact-heavy litigation.

But as I also said in a (friendly) critique of prof. Kerr’s argument, one problem with such appeals for more evidence, especially expert evidence, is that it can be very hard to come by, especially in “ordinary” cases rather than those that are designed and litigated by specialized public-interest advocacy organizations. (I also took up this point here.) Rowe is the epitome of such “ordinary” cases, because it was brought not by a prisoners-rights advocate, of the sort to whom prof. Kerr’s article is first and foremost addressed, but by a self-represented prisoner who, as Judge Posner notes, is no position to take prof. Kerr’s and Judge Posner’s advice, sound though it is in theory.

Is it right, then, for courts to effectively substitute themselves for the missing experts in such cases? Or are the dangers of partiality and unreliability too high? I’m not sure that partiality is as serious an issue as Judge Hamilton makes it out to be. In this case, neither party presented anything like solid scientific evidence. Was Judge Posner taking the plaintiff’s side when he started googling for it? I’m not convinced. Besides, for better or worse, it is already the case that judges (and their clerks) might be going the extra mile, or at least putting in the extra hour, to find plausible legal arguments in the self-represented parties’ submissions. If this is a problem ― and I’m not convinced that it is, though perhaps I’m just trying to wish away the sins of my clerkship ― it is by no means unique to scientific issues.

Reliability is a bigger worry, for me anyway. Judge Posner himself has long pointed out that most judges aren’t very good at doing science, or social science. In his “Appendix” he points at errors in Judge Hamilton’s reading of the scientific evidence in Rowe. He may well be right. But if a thoughtful appellate judge can so easily err, is it a good idea to entrust judges with this responsibility? Not every judge has Posnerian talents (and his own scientific endeavours have sometimes been criticized too).

At the same time, we have to weigh the risk of unreliability against that of manifest injustice. Judge Posner has a point when he says that the adversarial process may not be functioning when the parties’ resources are as unbalanced as they are in this case. The judges who end up “helping” self-represented litigants in one way or another, are all aware of this point, as indeed is Judge Hamilton. Is the solution in some sort of reform that would explicitly set out the rules for the judges to follow? Judge Hamilton is right that Judge Posner’s approach offers no real guidance to either litigants or judges. But perhaps the trouble is that we are still very far from having figured out what these rules should look like. And perhaps, then, it is better to let the cases develop, to let the judges argue it out, before rushing to either reaffirm the traditional rules or formulate new ones.

Legal realists said, derisively, that the law depends on what the judge who declares it ate for breakfast. That would be troubling, if true. And it seems troubling, too, that the outcomes of cases should be dictated by what the judge googled (at breakfast or any other time). But if the realists were right, the solution surely was not to prevent judges from having breakfast. A hungry judge isn’t obviously better than a satiated one. Similarly a judge who meticulously follows a diet of neutral ignorance might not be better than one sated on Google.

Show ‘Em

Earlier this week, an American court issued a decision on a topic that is all but certain to come up for discussion in the weeks after October 19: the ballot selfie, and the attempts ban it. Judge Barbadoro of the U.S. District Court in New Hampshire declared unconstitutional that state’s law that made it an offence to show one’s completed ballot to another person “with the intention of letting it be known how [one] is about to vote or … has voted,” including by means of “taking a digital image or photograph of [the] marked ballot and distributing or sharing the image via social media or by any other means.” Over at the Election Law Blog, Rick Hasen comments on the decision, hoping that it will be reversed on appeal.

For my part, as usual, I express no views on the propriety of this outcome under American law. However, because the issue has already come up in Canada (though without as yet resulting in a court judgment, so far as I can tell), and is very likely to come up again, I think it worthwhile to briefly summarize the court’s reasoning, and highlight a number of very interesting questions that it gives rise to.

Judge Barbadoro’s decision begins with a review of the history of the secret ballot ― or, as he calls it, the “Australian” ballot ― in the United States. As in the United Kingdom (about which I blogged here) and in Canada, elections prior to the introduction of the secret ballot were a brutal business. Corruption and intimidation, even violence, were commonplace. The use of the secret ballot, as well as legislation targeting such manipulation of the voters more directly, helped mostly (although not entirely, the judge says) eradicate it. Indeed, there is no evidence of voters being threatened or bought in New Hampshire recently, and the supporters of the ballot selfie prohibition did not cite any such cases, beyond one dubious anecdote, in defending the law.

Applying the analytical framework developed by the U.S. Supreme Court for freedom of expression cases, Judge Barbadoro then asks whether the prohibition is a “content-based” restriction on speech and, having concluded that it is, whether it is “narrowly tailored” to serve a “compelling government interest.” The judge concludes that the law meets neither of these conditions. While preventing corruption at the ballot box is a compelling interest in theory, the government must also “demonstrate” that it is invoking it to address an actual problem. Since there is no evidence of corruption or intimidation actually going on, the government has failed to do so:

even though small cameras capable of taking photographic images of ballots have been available for decades and cell phones equipped with digital cameras have been in use for nearly 15 years, the [State] has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote buying or voter coercion. (32)

Judge Barbadoro adds that even if he had found the government’s interests compelling, he would still have held that the prohibition on ballot selfies is not “narrowly tailored.” Instead of banning people from sharing images of their ballots regardless of their motivations for doing so, it should focus on the use of such pictures to enable corruption and intimidation. In any case, “[t]he few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media given the criminal nature of the schemes in which they have become involved.” (38)

The most important question judge Barbadoro’s conclusion elicits concerns the role of the courts in cases where they are dealing with prophylactic legislation, which aims not to address existing problems but to prevent problems from happening in the first place. By their nature, such laws are harder to justify by reference to evidence. And it stands to reason that that could open to the door to governmental abuse. Restricting constitutional rights “just in case” is a disturbing idea. Yet must the government wait for problems to arise before it can do anything about them? Especially when the problems at issue are not something inherently vague and uncertain, like the unfairness of the electoral process purportedly caused by the absence of campaign spending restrictions, but actual criminality, like bribery and intimidation. And all the more so when there is a history, albeit a somewhat remote history, of such problems actually happening.

The interpretation of this history is another big issue raised by Judge Barbadoro’s decision. What are we to make of the decline and virtual disappearance of voter bribery and intimidation in the wake of the adoption of the secret ballot and the enactment of the laws against such practices? How do we disentangle the effects of these laws from those of the secret ballot itself? Is the very success of these techniques a reason for letting ballot secrecy fall by the technological wayside? And then, there are questions about much more recent history ― specifically that of the ballot selfie and the innovations that enable it. Judge Barbadoro asserts that cellphone cameras have been around for 15 years, but how widespread were they then? The Oxford English Dictionary’s lexicographers have tracked down an example of the word “selfie” being used back in 2002, but the explosive spread of the phenomenon is surely more recent, and the idea of the “ballot selfie” might be more recent still. Is it, then, really the case that any problems that this phenomenon might generate ought to have become manifest, as Judge Barbadoro suggests? (Incidentally, while his opinion provides a wealth of citations to materials on the history of the ballot, this technological history is merely asserted.)

Finally, I think it is worth asking whether outright corruption or threats are the only reasons to worry about ballot selfies. In fairness to Judge Barbadoro, they were the only reasons asserted by the New Hampshire prohibition’s defenders. And the judge is probably right that people involved in corruption or subject to intimidation are unlikely to post their ballot selfies on social media. They’ll just show them to the persons paying or threatening them, and go undetected. But should we not also be concerned about the more diffused social pressure that can be brought to bear on people who let ― or those who fail to let ― others know how they voted? Should we not worry about people being pressured to vote, or to vote in a particular way, and to prove that they have done so, not by a specific manipulator, but by their online peers? People involved in “shaming” a person who didn’t vote to their satisfaction might not be committing an offence, and the line between legitimate and immoral behaviour in this realm is probably too blurry to lend itself to legal implementation. In this respect, the prophylactic prohibition on ballot selfies might actually be necessary.

As I said that in the post linked to above, I believe that the secret ballot “was one of the greatest inventions of a century that did not lack for them, and there is no reason to give it up.” And I am inclined to further believe that even coercive enforcement of ballot secrecy is justified. My hunch is that Canadian courts would agree, though I haven’t thought the matter through in detail. (I’ll try to do that before October 19.) In the state whose motto is “live free or die,” however, you’re now entitled not just to tell people how you voted, but to show them, too.

UPDATE: Prof. Hasen now has an op-ed for Reuters, further explaining his views. His most compelling argument, in my view, is the following:

the effectiveness of the selfie ban and the continued occasional prosecutions for vote buying, especially for absentee ballots, show that where there can be verification of how someone voted, this is a real — not theoretical — problem.