July 2009 Archives
The debate gearing up around the nomination of Judge Sonia Sotomayor has little to do with her qualifications (undeniably impressive) and everything to do with a partisan referendum on the role of judges in a free society. You can practically already hear the senators' speeches, rewound from the last hearings. Conservatives will say she is "activist" and "result oriented," while liberals will praise her "empathy" and commitment to the "rights" of the downtrodden.
The tired vocabulary from the 1960s, however, is not just boring--it also reveals a profound misunderstanding about the role of judges. Both sides basically have it backwards, and have conspired unwittingly to foster a kind of legal free-for-all. Judges sit on their hands, letting litigants argue almost anything (thereby avoiding "activism") while permitting any disgruntled person to challenge decisions by people in authority (thereby showing "empathy" and honoring "individual rights").
Conservatives practically snarl when using the phrase "activist judge," thinking of judges in the heyday of the rights revolution who took it upon themselves to take over prisons and school districts. But their concern for judges acting like legislatures (a fair point) has mutated into a philosophical antipathy to judges making any value judgments. Conservative dogma, to quote Chief Justice Roberts in his confirmation hearing, is that judges are "like umpires," who don't "make" law but just "apply" law. This is a myth, of course--no animal sacrifices or burning of incense will reveal the one true legal ruling. A judge must make a value judgment. There's no other way to distinguish between, say, a valid lawsuit and one that, in a free society, ought to be dismissed.
Words matter, however, and the epithet of "activism" is now lodged in the collective judicial brain--it is hard to talk with any judge about judicial responsibility without hearing immediate protestations about how judges must avoid being "activist." But if judges don't assert values of reasonableness, then society loses the protection of the rule of law. That's what happened in modern society, with the effects all around us. Hardly any interaction in a free society is safe of legal peril--in the workplace, in the classroom, in government, on the playground. Teachers won't put an arm around a crying child. Doctors squander billions on defensive medicine. Diving boards disappear.
Liberals, on the other hand, see justice as the protection for the little guy, and look to Judge Sotomayor "to stand up for the rights" of the underprivileged. The rhetoric of rights is overpowering. Judges practically wilt at the thought of being insensitive to "individual rights."
But what about the rights of the community? Looking at every lawsuit as a matter of individual rights implies a lowest common denominator approach to justice that is the antithesis of the rule of law. Every accident, every job setback, has an injured person, for whom we can all feel empathetic. But letting the person maintain a claim creates a different set of victims (those who pay) and, more importantly, can discourage socially beneficial activities. If any swimming accident can result in a lawsuit, pretty soon lakes will close and there will be no diving boards.
Just as concerns about "activism" sprung from judicial overreaching, the liberal preoccupation with rights arose from a long history of judicial neglect. But the idea of rights then expanded to encompass what legal historian Lawrence Friedman calls "total justice"--in which courts were available to remedy almost any daily disappointment.
Pressing law onto daily choices is not freedom, however, but a form of coercion. Freedom is supposed to be an open field of human possibilities, not a legal minefield. Law supports freedom not by interceding in daily choices, but by defining the outer boundaries of legal intervention--"frontiers, not artificially drawn," quoting philosopher Isaiah
America needs a new judicial philosophy. Instead of focusing on enforcing "rights" and avoiding "activism," judges should look to the effects of lawsuits on the functioning of society, and see their job as drawing "boundaries" and achieving a "balance" between competing interests of freedom and individual grievances. Judicial rulings that keep claims and defenses reasonable should be encouraged, not avoided. To quote former Justice Benjamin Cardozo, the judge must act "as the interpreter for the community of its sense of law and order." Only by judges continually asserting reasonable community values can citizens enjoy the protection of the rule of law. As Justice Felix Frankfurter observed, "A timid judge, like a biased judge, is intrinsically a lawless judge."
There is plenty for liberals and conservatives to argue about, but first we need to restore the authority of judges to bring order to the free-for-all. What people can sue for establishes the limits of everyone else's freedom. That's why judges must be activist in taking back control of the courtroom. That's why judges must look to the effects of claims on the broader society, not just empathy to the particular claimant.
The Supreme Court's Ricci decision --holding that New Haven engaged in unlawful "reverse discrimination" by discarding test results for fire department promotions --exposes an unavoidable conflict at the heart of Title VII of the Civil Rights Law. It's basically impossible to encourage affirmative action (to avoid "disparate impact") without discriminating against other workers.
Ricci will probably prompt more litigation, as white males challenge perceived efforts at affirmative action. Rather than descend further into a downward spiral of accusations of discrimination and reverse discrimination, perhaps it's time for a fundamental rethinking of how to enforce anti-discrimination laws.
There's a flaw in the premise of these cases: law can't enforce fairness in daily relations. Law can guard against overt patterns of discrimination, but intervening in specific employment decisions creates a hopeless morass. There's no objective test, no proof in a court, that can sort out what's fair and what's not. The goal of the civil rights laws was to avoid racism and other forms of systematic unfairness --not to try to achieve a utopia in which every employment decision is extruded through the judicial system to prove some ultimate fairness. Fair to whom? Employment decisions always involve a winner and a loser.
The difficulty of proving fairness is evidenced by the majority and dissenting opinions in Ricci (see here).
The majority opinion (by Justice Kennedy) emphasized the fairness of a level playing field. What stuck in the craw was that
The dissent (by Justice Ginsberg) emphasized the overwhelming patterns of nondiversity, reaching back generations. Justice Ginsberg questioned the whole idea of using a written test as the threshold for promotion --leadership skills are hardly revealed in test scores.
Both sides are right. Of course it's unfair to go to great efforts to design a neutral test, and then throw out the results. But Justice Ginsberg is also correct that no test can accurately evaluate intangible qualities like leadership, or the potential benefits of a minority supervisor. If
Almost forgotten in the spat over fairness is the main goal of employment decisions in the first place --to do what's best for the organization. That always involves the exercise of judgment by the person with responsibility. The hard question, in a free society with a bad history of discrimination, is how to restore the freedom to use judgment without opening the door to past bad behavior.
Discrimination law has certainly come a long way since the heady days when it knocked down historic barriers of racial and gender segregation. Now almost any disgruntled employee can claim discrimination --even before Ricci, an estimated 70% of workers were in some "protected category." Federal courts are clogged with employment lawsuits--about 10% of the federal civil docket. Most are without merit, but the claimants don't have the objectivity to discern their own shortcomings, and certainly not to discern the needs of the organization or the skills of others. The overhang of possible claims has chilled open interaction in the workplace, and acts as a barrier to minority employment.
The Ricci decision now closes the circle of discrimination jurisprudence, achieving a kind of mobius strip of forbidden acts. You can't discriminate; you can't reverse discriminate, you must strive towards choices that are pure and neutral. If Aldous Huxley were here, he would require HR officials to take an extra dose of soma to achieve a state of complete indifference. You can already see the elaborate protocols set up to avoid "subjective" criteria--effectively making human judgment illegal. Courts will take out their magnifying glass to enforce a lowest common denominator approach to employment disputes, scrutinizing supervisors to make sure they can't favor anyone.
Is this really how we want courts to spend their time? Is this really how we want supervisors to make decisions? Does this enhance the workplace culture, or corrode it?
Justice Scalia in his concurring opinion suggests that there is an unavoidable conflict between the Equal Protection Clause of the Constitution (the idea of the level playing field) and Title VII's suggestion that employers can be liable for "disparate impact" (when minorities don't have the highest test scores). Professor Richard Epstein goes further and calls for repeal of Title VII altogether
--pointing out the paradox that it prohibits affirmative action (see here).
I have a different proposal --pull back Title VII to its original goal. Keep the basic prohibition against intentional discrimination ("disparate treatment"), but limit the protection to groups that traditionally suffered discrimination in that workplace, and, with limited exceptions, require group-wide claims. Federal courts should not be called upon to adjudicate individual workplace disputes. That's a quagmire, hip-deep in emotion without any lifeline to dispositive facts. Ask any federal judge.
In my formulation, there would be no legal need to promote firefighters using written tests, and no prohibition on promoting minority firefighters. The statute is there not to create a happy world of fairness-for-everyone, but to avoid slipping back into the unhappy world of racial discrimination. There's a difference. The law isn't there to protect white guys. Nor is the law intended to compel affirmative action --what it prohibits is intentional discrimination. Now, there would still be pressure for employers, like the New Haven Fire Department, which have an extremely non-diverse workforce. The city might feel a little nervous about how it proves absence of discriminatory intent. That's not a bad thing, in my view. Leaning over backwards for diversity is a productive instinct. Feeling forced to make choices is not.
Pressing law down onto daily choices is a formula not for fairness, but for bitterness. What the competing opinions in Ricci demonstrate is how discrimination law has evolved into a perfect formula for simmering resentment. Why did he get the promotion and not me? It must be racism. Or...He must be playing the race card.... The only solution I can see is for law to get out of the business of trying to adjudicate fairness in individual choices, and to go back to guarding against patterns of intentional discrimination.
By the way, I don't think Ricci has anything to do with Judge Sotomayor's fitness as a nominee. As the Supreme Court's opinions make clear, the law in this area is internally contradictory. Judge Sotomayor's ruling is certainly not "activist" --the decision deferred to the choices of officials who are accountable politically. She and her fellow judges can be criticized, I suppose, for not writing an opinion explaining their decision to affirm the trial court. But what were they supposed to say? The Supreme Court has now given legal priority to the need to avoid "reverse discrimination," but that conclusion was hardly compelled by prior jurisprudence. There's a lesson to be learned from the Ricci controversy, however. Law has limits and can't meddle in daily choices without making everyone unhappy.
