On the Benefits of Judicial Dishonesty

Dahlia Lithwick over at Slate has an interesting article praising Antonin Scalia's candor in discussing precedents he would like to overrule.

Yes, someone at Slate has praised Antonin Scalia.

No, this is not the apocalypse.

So anyway, Justice Scalia has mentioned that he would vote to overrule New York Times v. Sullivan, which set relatively strict standards for bringing a libel suit (in particular, it established that supposed victims must show that an author of false statements had been acting with "actual malice"). Most Court watchers will say "Hey, Justices can't pre-judge cases like this! He should recuse himself!" Perhaps he should if such a case comes up, but that isn't really the point. Ms. Lithwick argues that this sort of pre-judging isn't inherently bad. Sure, if the two options are pre-judging and principled decision-making, then the latter is clearly better. But she argues that (and I agree that) the options are more like boisterous prejudice and silent prejudice. In other words, the justices act with ideological goals in mind, but most keep them to themselves. Fair enough. So, if these are the choices, she thinks that the out-spoken model is better, because

I'd rather hear the battle plans than not. It's precisely the sort of candor that has been most lacking at judicial confirmation hearings, where each nominee instead takes the fashionable line that precedent is all but sacred.

While I agree that confirmation hearings as they exist now are largely a waste of time, I'm not sure if shouting that the Court is just a bunch of ideological hacks is a good idea either. If we imagine a Court full of Scalias, we would have nine justices saying "I think this case should be overruled; I think this way about this issue, etc." While this honesty may be refreshing, I think there is something to be said about the "Judicial Myth": the belief that judges are somehow "above politics."

The Judicial Myth grants the Court a certain amount of institutional respect; it is viewed as not engaging in the kind of dirty politics that the elected branches so often engage in. I mean, come on, it seems a lot easier to respect John Roberts than Joe Biden, and I'm a Democrat! I think if members of the Court began speaking out about political issues prior to actually getting a case, the Court would lose that prestige. Of course, one can argue, "but Fz, if the Court really is just a bunch of ideological hacks, shouldn't it lose its prestige?" Yes, if that were true, it should. But, it isn't. The Court is engaged in politics, yes. And the Justices all have ideologies, yes. But, the kind of politics they engage in is inherently different than the kind the elected branches engage in. When we hear the term "politics," we generally think of it pejoratively. We don't think of politics as the debate between two sides of an issue, which is what it really is, or at least should be. We think of special interest groups, and lobbyists, and DC Madams. While I wouldn't be surprised if Clarence Thomas's phone number showed up on the DC Madam's list, the Court avoids this sort of politics. Its area of politics involves dealing with inherently political issues. And, like all Americans, judges have deeply-felt opinions on political issues. These opinions will naturally inform their jurisprudence. But, this doesn't mean they're all ideological hacks.

It means they're human.

As long as we have humans serving as judges, we will have to deal with the idea that they actually have opinions about things. However, even though this seems sort of obvious, it does not follow that judges should go on spouting those opinions. While it may be interesting to find out what is truly lurking in the mind of Samuel Alito, it would be harmful to the judicial process. I think it would give the false impression that judges do not make principled decisions. And while I disagree with Scalia on many, many issues, I must admit that his decisions are principled. He may be eager to overrule certain things, but this is because he has put in a lot of intellectual energy thinking about these things. Hell, I would be more worried if a judge didn't think about issues until a case came before him. I think that pre-judging (or at least pre-thinking) is not a bad thing. But, I don't think many people would agree with me on that. If they hear judges saying what they want to overrule, they would not think "this is an expression of principled legal thought," they would think "this is an expression of politics," with all its pejorative glory.

So even though the Court is a political actor (a principled political actor) , we definitely do not want the public thinking that the Court engages in "politics." So, Supreme Court Justices should keep their damn ideas to themselves.

More on Ledbetter

Richard Thompson Ford has a good article on the Ledbetter decision over at Slate. He makes an important point that I ignored in my post below. Alito focuses on intent rather than consequences. In other words, an action is not discriminatory so long as it is not intended to be discriminatory (even if it has discriminatory consequences). The argument goes like this: while the initial pay raise may have been discriminatory, there is no reason to suggest that all subsequent raises were discriminatory (and this gets us back into the 180 day issue discussed in the post below). However, Ford makes a good point:

Ledbetter argued that she was paid less than that of her male co-workers because of her sex right up until she retired. To prove this, she showed that her employer intentionally discriminated against her at some point in setting her salary, and every subsequent paycheck was an application of the original set point. Who cares whether the subsequent salary decisions were intentionally discriminatory? Goodyear continued to pay Ledbetter less than her co-workers for the same work because of her sex. That's sex discrimination. When it first decided to discriminate against her should be irrelevant.

So, the Court is saying that discriminatory intent must be shown within the past 180 days. However, an application of that discriminatory intent may not itself be discriminatory intent. What are the implications of such an argument?

If an employer pays a woman less because of her sex, and isn't found out within the 180- or 300-day period, the employer can continue to pay the discriminatory wage. For employers, the lesson is obvious—hide your misdeed for six months and you're not only off the hook, you get to keep cheating. For employees, the lesson is equally clear: Sue early and often. If you suspect your boss might be discriminating with regard to your pay, you can't afford to wait around until you're sure.

This is simply absurd. An action can be representative of discrimination even if it isn't intended to be discriminatory. Even if Ledbetter received equal pay raises after the initial raise (which is unlikely), her salary still reflects discrimination. Indeed, the act of her receiving her unfairly low paycheck seems like discrimination to me. A decision to not give a woman a fair raise because she is a woman is discrimination, yes, but that is not the end of the discrimination. Continuing to support that decision by paying her less is discriminatory, even if it isn't intended to be.