Tuesday, November 08, 2005

Debunking the Myth, the Supreme Court and Group Decision Dynamics

Many legally inclined weblogs have linked to Judge Alito’s 1974 student note in the Yale Law Journal, but few, if any, have discussed what it says, or more precisely, what it doesn’t say about his judicial philosophy. Having taken the time to read the piece, I thought it was worthy of a brief discussion (which I know for me can be a bit long, but please bear with me). Several of our contributors, including myself, are authors of similar pieces, so we know that they are rarely earth-shattering pieces of legal brilliance, but they do take a lot of thought, work, and effort, and, therefore, can be illuminating with respect to what and how a person thinks about a discrete legal question. How good of a guide they are with respect to judicial philosophy, that’s a different story. Let me just say that should I ever get nominated to be a judge, I hope that people don’t dig up my journal article, because if nothing else critics would note that I was dead wrong in my prediction about how a case would be decided by the Supreme Court, and I would hate to have that held against me.

Anyway, Judge Alito’s student note is a bit different than most that I have read, primarily because he doesn’t implore the usual case study method, but rather takes a different course, going behind the scenes and reviewing the private papers of the Justices to better try to understand the decision making process of the Court, and more importantly the group dynamics at play in arguably the most secretive branch of government we have. Alito examines a series of First Amendment Establishment Clause decisions commonly referred to as the “released time” cases. Simply described the policy of “released time” was one that permitted student who wished to participate in religious education could be excused for a time from their regular public school curriculum to attend religious classes taught by various members of community congregations. The details of the policies differed from state to state and presumably from school district to school district. For example, some states (Illinois) allowed the religious classes to be taught on the public school grounds, while others (New York) required that the classes be held in alternative locations. Alito reviews the votes of the Supreme Court justices starting in 1947, when the Court decided Everson v. Board of Education, which first incorporated the Establishment Clause against the states. He next considers two “released time” cases McCollum v. Board of Education, where the Court held unconstitutional the Illinois program, and Zorach v. Clasuon, where the Court upheld a similar New York “released time” program.

What is striking about Alito’s analysis is that he spends little time on the actual decisions themselves, which, according to his article, were the subject to intense academic debate because of the largely inconsistent results and strange voting patterns of the Justices. Rather, Alito focuses on the private papers of Justices Felix Frankfurter, Harold H. Burton, and Hugo Black to paint a picture of a Court more deeply divided and fractured than the publicly published written opinions would have led observers to believe. Essentially what Alito describes is a rift between Justices Frankfurter and Black and a compromise negotiated by Justice Burton that essentially produced the confusing and seemingly inconsistent results between the cases. In Everson, Justice Black wrote for the majority, essentially adopting the “wall of separation between church and state” position, but finding that a local ordinance reimbursing parents of children who attended religious schools for bus fares did not breach the wall. Justice Frankfurter and 3 other Justices, Burton, Jackson, and Rutledge dissented arguing for an even stricter separation between church and state than Black was willing to accept. This division made Everson a 5-4 decision that was very controversial. According to Alito, at the conference in McCollum, the Justices were 7-1 in favor of holding the Illinois program unconstitutional (apparently, according to the Chief Justice’s voting journal Justice Murphy passed in conference, though he later joined the majority making the final tally 8-1), and again Justice Black was assigned the majority opinion. His initial opinion, however, failed to garner majority support as its strong defense of his Everson position alienated several members who had dissented in Everson. As a result, Justice Frankfurter accepted the task of writing a concurring opinion for the 4 Everson dissenters. Here’s where things get interesting from a group dynamics perspective. According to Alito, Justice Burton attempted to forge a compromise between Frankfurter and Black, which although successful on its face, left unresolved several important legal questions, which according to Alito largely contributed to Zorich being decided the other way to the surprise of many legal scholars and Court observers.

I know, you’re asking what, if anything, does this have to do with Judge Alito’s nomination and the Supreme Court. Well, several things in fact. From the perspective of Judge Alito’s nomination, there is only a limited use for this paper, and it comes in a rather length substantive footnote (#80) in which Alito seems to criticize Justice Burton for valuing compromise above settling the underlying legal issues presented by Everson and McCollum. In fact, Alito describes Burton as a “social specialist,” which he defines as a person who “channel[s] their efforts toward promoting and maintaining friendly relationships among the members of the group while they struggle to perform their task.” He further notes that Burton, while skillful as a “social specialist,” was “uncertain in the area of constitutional doctrine” and “his views on constitutional issues was uncertain.” Moreover, Alito goes on to cite another example of a case in which Burton arguably performed a similar role with respect to the Court’s decision making. In a precursor to Brown v. Board of Education, the Court in Henderson v. United States decided, in an opinion by Justice Burton, that a segregated seating arraignment by Southern Railroad was unconstitutional and a violation of the Equal Protection Clause. According to Alito’s research, Justice Burton’s original draft opinion contained language that seemed to signal the end of the “separate-but-equal” doctrine, but in an attempt to hold unanimity among members of the Court Burton removed the language at the request of only Justice Frankfurter. From this discussion and the tenor of the paper it seems reasonable to me at least to say that Alito is not a supporter of the compromise approach especially when it clouds the real purpose of the Court, namely, to decide cases and controversies and grapple with complex legal and constitutional issues. Alito may be read to suggest that this group dynamic among members of the Court actually weakens it more than closely divided cases and sharp worded dissents and concurrences. This is not to suggest that Alito would be bombastic or unwilling to compromise and work with his colleagues when confirmed, but only to suggest that there is a hierarchy to his priorities. In other words, for Alito it may be doctrine first, than group dynamics if appropriate. I’m not passing judgment on this position, nor am I tying to put words in Alito’s mouth, I’m merely offering my opinion of what I read in his note.

From a broader perspective, however, this note is illuminating, at least to me, because it seems to affirm something that I have believed for a very long time. Namely, that no matter how hard one tries to separate themselves from their task they can never escape some personal involvement that impacts the way they think. In other words, there can never be true “fidelity to the law” or total objectivity in deciding cases, because judges are human, and as humans they are prone to react in certain ways to certain cases. Justice Burton could no more separate himself from his personality as a “social specialist” any more than say an optimist could stop seeing the glass half full. The acceptance of the humanity of judges is something that I think Justice Cardozo was attempting to describe in his theory of legal realism. The last 20 or so years of largely conservative jurisprudence has tried to argue that legal realism is a subjective position that allows judges to do nothing more than substitute their personal policy preferences into cases and decision. While this position is plausible if one takes the theory beyond what may have been its original intent, it is not a necessary outcome of the notion of realism. Cardozo, in my opinion, was attempting to debunk the myth that judges were deciding cases at arm’s length. Not so, he said, they are personally engaged and try to make the best decisions possible, but those decisions require judgment and judgment is a function of a judge’s personality and experiences and to try to claim that the two things are separate is foolish.

To a point, I think Cardozo was right and we are all really legal realists now. Alito’s discussion of the behind the scenes personal dynamics that informed the decisions in the “release time” cases I think help prove the limited realism argument that I’m supporting. Sure, Judges are there to decide the cases and interpret the laws, but they are not doing it in a vacuum and they are persuaded both by their own personal philosophies and the philosophies and opinions of their fellow judges. There is nothing inherently wrong about this that I can see; rather it is simply an acceptance of the human condition as applied to judging. If we want to rid ourselves of this then we need to invent robots, devoid of experiences make our legal decisions for us. We may not always agree with the decision of a Court or of a position of a given Justice, but I think the sooner we accept the fact that in the case of the Supreme Court it is nine human beings each with unique perspectives shaped by unique experiences doing they best they can the easier it will be to confirm judges regardless of their personal political preferences.

The Court is a group decision making institution like any other, to expect it to be different because it is a court is a fools errand. The sooner we all stop pretending it is something it is not, the better off we will all be. This is what I think we can take from Alito’s note, not some grand insight into how he will rule on abortion or civil rights or executive powers. We won’t know that until he actually decides those cases, but we do know that he recognizes the inherent group dynamics of the Court and is aware that they can be used both positively, as in Brown, where Chief Justice Warren held out for a unanimous opinion, or negatively as in the “release time” cases, which yielded some confusing results. This awareness is most definitely a plus in my opinion and further supports the claim that Alito is qualified for a seat and should not be filibustered. Vote against him, sure, if your politics suggests you should, but like Justices Roberts, Ginsburg, Breyer, and Scalia he deserves his seat regardless of his personal politics.


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