“Law is a human exercise,” U.S. Supreme Court Justice Anthony Kennedy once said, “and if it ceases to be that it does not deserve the name law.”

That’s a clever tautology, but a weak argument. (More)

Activist Judges, Part II: “People We Like”

This week Morning Feature considers the murky question of ‘judicial activism.’ Yesterday we began with legal reasoning, the rigorous logic that law students are taught and that we assume judges apply in deciding cases. Today we look at motivated reasoning, the thought process that people actually use. Tomorrow we’ll ask whether and how the institution of law can minimize human bias.

“An activist court is a court that makes a decision you don’t like”

In May of 2010, then-Solicitor General Elena Kagan was being discussed as President Obama’s likely nominee to replace retiring Justice John Paul Stevens. This was less than a year after the confirmation of Justice Sonia Sotomayor, whom the Wall Street Journal had derided as The ‘Empathy’ Nominee, “steeped in the legal school of identity politics,” and two weeks after Mark Halperin’s (now deleted) screed titled “White Men Need Not Apply.”

Such was the context when Justice Anthony Kennedy defended empathic judging at a legal forum in Florida:

“You certainly can’t formulate principles without being aware of where those principles will take you, what their consequences will be,” he told an audience of about 750 at a joint meeting of the Forum Club of the Palm Beaches and the Palm Beach County Bar Association. “Law is a human exercise and if it ceases to be that it does not deserve the name law.”

Yes, that’s the same Justice Kennedy who joined Justice Antonin Scalia’s concurring opinion that dismissed the safety concerns of patients and women’s health clinic workers in Boston. He also had no empathy for non-Christians who don’t want to sit through Christian prayers at public meetings. But he was full of empathy for religious business owners who don’t want to cover birth control.

And at the same legal forum in Florida, Justice Kennedy said, “An activist court is a court that makes a decision you don’t like.”

“Opportunistic free speech advocates”

Or, perhaps, activist judges find clever ways to rationalize decisions they reached for other reasons. Consider a 2002 study published in the Yale Law Review on the effect of judges’ gender in sex discrimination cases. Overall, plaintiffs – almost always women – lost 75% of three-judge appellate reviews in such cases. But women lost 83% of the cases where all three appellate judges were men. Having just a single female judge on the panel doubled the plaintiff’s likelihood of winning from 17% to 34%, and having two women on the panel raised it to 43%. The same study found that ideology played a role, with Democratic-appointed judges finding for women in 33% of cases versus only 21% for Republican-appointed judges. Republican-appointed women and Democratic-appointed men scored about the same, at about 30%.

Social scientists call that in-group favoritism, and a recent study found striking evidence at the U.S. Supreme Court:

Lee Epstein, a political scientist and law professor who conducted the new study with two colleagues, said it showed the justices to be “opportunistic free speech advocates.”

The findings are a twist on the comment by Justice Oliver Wendell Holmes Jr. that the First Amendment protects “freedom for the thought that we hate.” On the Supreme Court, the First Amendment appears to protect freedom for the thought of people we like.

“To cast this case into outlines of racial prejudice […] merely confuses the issue”

Consider Fred Korematsu, an American citizen born in Oakland, California, whose parents moved to the U.S. in 1905. He volunteered for the U.S. Navy, but was rejected because of stomach ulcers. He then trained as a welder and worked in a shipyard until he was fired after Pearl Harbor … because his parents had moved to the U.S. from Japan.

In 1942 he and his family were told to report to an internment camp. He instead went into hiding in Oakland, where he was arrested after someone told police he “looked like a Jap.” He was convicted of violating the executive order imposing internment on Japanese-Americans, and in 1944 his appeal reached the U.S. Supreme Court, where Justice Hugo Black summarized the Court’s decision in this paragraph:

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers – and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies – we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for [citation omitted] action was great, and time was short. We cannot – by availing ourselves of the calm perspective of hindsight – now say that at that time these actions were unjustified. [Italics added]

Justice Black was offended that Korematsu’s lawyers alleged racial prejudice. But look at the highlighted passages:

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded […] because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated[.]

That’s a case study in in-group bias, cognitive dissonance – Justice Black denies that race was involved while citing race as a reason – and motivated reasoning replacing the legal reasoning we discussed yesterday. Ironically, Korematsu has been cited not as judicial activism, but “an unfortunate example of judicial restraint.”

Tomorrow we’ll see why that description relies on a simplistic definition of “judicial activism,” and whether and how we can minimize human bias in the law.

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Happy Friday!