Yearly Archives: 2017

Adversity and Non-Contentiousness

Sep 28, 2017 Kevin C. Walsh1 comment

Article III extends “the judicial Power of the United States” to certain “cases” (defined largely by subject matter) and certain “controversies” (defined largely by parties). But why the different words? Does the distinctive terminology track a difference in legal meaning? Questions along this line seem to come up every time I teach about Article III. Finally, I have a concise but fairly comprehensive answer to offer if asked.

My answer now—and my (justified?) confidence in its correctness—comes from James Pfander and Daniel Birk. Their compact piece, Adverse Interests and Article III: A Reply, restates and defends against a powerful scholarly critic—Ann Woolhandler—an account they first advanced two years ago in Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction.

I must confess to paying insufficient attention to that earlier Pfander/Birk article—a 129-page throwback to the days before leading law reviews colluded to impose word limits. But if I can handle this most recent thirty-pager, so can you. And you should go read it with all deliberate speed. Like the pie-eating competition to which the practice of law is sometimes compared, the reward for consuming this legal scholarship will be more legal scholarship. But unlike excessive pie-eating, consumption of this additional scholarship will provide additional satisfaction instead of indigestion. (It’s all protein, no carbs.) Start with the reply, as some judges do with their briefs. And you will then be motivated and equipped to go back and read not only that earlier Pfander/Birk piece but also Woolhandler’s response, Adverse Interests and Article III, with the attention and care each demands and rewards.

Thanks to Pfander and Birk, my in-class answer to the standard “what’s the difference” question will begin something like this: “Yes, good question. There is a difference between ‘cases’ and ‘controversies.’ ‘Cases’ is a broader category than ‘controversies.’ The category of ‘cases’ includes not only civil suits and criminal prosecutions, but also other judicial proceedings that result in a final determination of a claim of legal right, including the granting of petitions for naturalization and applications for warrants. Unlike ‘cases,’ which can exist even if there is a single party before the court, ‘controversies’ require the presence of an adverse party.”

This answer—or beginning of an answer, really—is certain to raise many additional questions in class as we continue our exploration of the federal judicial power. “What about standing doctrine?” “What about the adverse-party requirement?” “Was Justice Kennedy right to treat the presence of an adverse party in Windsor as simply a prudential matter?” “Are you actually saying Justice Scalia’s Windsor dissent was wrong?” “Will this be on the final?” “Can you repeat that so I can type it exactly?”

With the exception of those last two, these are all excellent questions. And the aid offered in thinking through all of them is a virtue not only of the Pfander and Birk pieces, but also of the responsive article from Ann Woolhandler that makes up the middle of this trio. These scholars cannot all be right about everything each asserts; some of their claims are inconsistent. Helpfully, though, Pfander and Birk begin their reply with an overview of some of the areas of agreement between them and Woolhandler. Here is one big one: even under Woolhandler’s more current-doctrine-compatible “adverse interests” approach, an adverse-party requirement is too demanding a formulation of what Article III inflexibly requires.

If judicially accepted, the Pfander and Birk view would significantly unsettle existing doctrine. If they are right about Article III, then “parties do not need an injury in fact to pursue a claim in federal court” (P. 1092), judicial proceedings can be Article III “cases” even in the absence of adverse parties or adverse interests, and Justice Scalia’s dissent in Windsor “began from an incorrect premise” about the need for an adverse party (P. 1073). It does not necessarily follow that Justice Kennedy was right in Windsor to treat the need for an adverse party as something that Article III assigns to case-by-case judicial discretion. But he was right to reject a hard-and-fast Article III adverse-party requirement.

For all its potential to unsettle existing doctrine, there is something about the Pfander and Birk view that makes it relatively easy to accept. The textual distinction between “cases” and “controversies,” they contend, maps onto a more fundamental distinction between contentious and non-contentious jurisdiction. And non-contentious jurisdiction, they show, has been uncontroversially exercised by judicial tribunals in many other jurisdictions over long swaths of time. Pfander and Birk help us recognize something that has been hiding in plain sight for a really long time—“the judicial Power of the United States” includes the authority to accept “cases” of non-contentious jurisdiction assigned to the federal judiciary by Congress. Further, their distinction between contentious and non-contentious jurisdiction offers a helpful lens through which to re-examine much of what we have taken for granted. Once we see the utility and ubiquity of non-contentious jurisdiction in other legal systems, the ability of Article III courts to exercise non-contentious jurisdiction assigned to them by Congress makes a great deal of practical sense, in addition to clarifying the textual distinction between “cases” and “controversies.”

It is not my intent here, though, to endorse every element of the Pfander and Birk approach, or to adjudicate each disagreement between them and Woolhandler. The former strays beyond my considered judgment from my examination of their arguments; the latter extends outside my ken. My goal, instead, is to encourage new readers to take up all three articles for themselves.

Reading good legal scholarship is good for your soul. And these articles are excellent. Tasty, nutritious, and restorative (with just enough pepper to be interesting), Pfander, Birk, and Woolhandler have served up chicken soup for the Article III soul. More often than I should probably admit on the Internet, the consumption of legal scholarship is a disagreeable and sometimes dreadful chore for me. This perspective doesn’t come through in my JOTWELL contributions, I hope, but that is primarily because the point of this forum is to identify and discuss scholarship that we particularly value. Isn’t it especially off-putting, though, when legal scholars disagree in a disagreeable way? And isn’t that disagreeableness often an indicator for distortion of the views with which a scholar is disagreeing? (One example from personal experience as a student law review editor fifteen years ago is Ronald Dworkin’s “book review” of a Jules Coleman book on legal pragmatism.)

If you, too, try to avoid the annoyance of people who cannot disagree without being disagreeable, you can approach the scholarly interchange among Pfander, Birk, and Woolhandler without apprehension. Perhaps “tonic” is a better metaphor than “chicken soup.” Their tone is just right throughout—reasonable and measured but also clear about areas of agreement and disagreement. And that helps the reader avoid the mental distractions that emerge from unnecessary invective. For anyone who makes a living in this profession of law, it is a true professional pleasure to come across a scholarly legal interchange carried out so clearly and cordially as in this series. That is not to say it is non-contentious. The whole point of the exchange is to contend for one understanding of the federal judicial power over another. But scholarly contention can be personally non-contentious while remaining legally rigorous. And this controversy—through both its what and its how—helps us think through why it is the case that Article III extends the judicial power of the United States to encompass both “cases” and “controversies.”

The Trouble with Qualified Immunity

Sep 14, 2017 Fred O. Smith, Jr.Add a Comment

Is Qualified Immunity Unlawful? This is the ambitious question that Will Baude tackles in a forthcoming article in the California Law Review. When plaintiffs file damages suits under § 1983 against government officials who violate federal rights acting “under color” of state law, they must overcome the defense of qualified immunity. That doctrine protects government officials from damages claims unless they violate clearly established law that a reasonable person would have known. The Court has emphasized that this is a high standard, protecting all but the “plainly incompetent and those who knowingly violate the law.”

While qualified immunity appears nowhere in § 1983’s text, its lawfulness tends to go unchallenged both in scholarship and in cases. Until now. Baude’s article interrogates the legal justifications for qualified immunity and finds them wanting. Neither text nor history is sufficient to sustain this highly consequential doctrine. He begins with the text, stressing the statute’s language, which purports to hold “[e]very person” liable who violates federal rights while acting under color of state law.

Baude’s article does not end with the seemingly unambiguous language of the statute, however, which would leave it a short article indeed. Instead, he catalogues and rebuts other proffered legal justifications. For example, on the rare occasions that the Court has explained the foundations of the doctrine, it has sometimes either asserted or implied that qualified immunity is a common law doctrine that was implicitly or presumptively incorporated into § 1983 when it was enacted in 1871.

Baude accepts that a common law backdrop can sometimes help us understand the proper scope of a statute. The problem is that the common law backdrop does not support qualified immunity, especially as the doctrine currently operates. In Little v. Barreme, the Supreme Court rejected a broad immunity for civilian government officials who violated the law. And in the decades after § 1983’s passage, courts rejected the notion that state and local officials who violate the Constitution should be immunized from liability. In Myers v. Anderson, the Court held that any claim of such immunity was “fully disposed of … by the very terms of” § 1983.

To be sure, Baude acknowledges that some common law doctrines protected government officials from suit under limited circumstances. Acting in “good faith” sometimes served as a shield to liability. But to the extent that a defendant’s good faith could doom a plaintiff’s suit, this was because bad faith was an element of a specific tort, such as false arrest. “Good faith” was not a broad protection that applied regardless of the underlying alleged violation. What is more, qualified immunity today is an objective standard that applies even when a defendant acts in subjective bad faith. In that way, the qualified immunity defense as it is currently understood outpaces the common law good faith doctrine.

Justice Scalia proposed an additional argument in a dissenting opinion in Crawford-El v. Britton. He contended that § 1983 had been interpreted too broadly, to reach officials who violated state law, because it seemed implausible that a person could violate state law while acting under the color of state law. Qualified immunity provided a remedial correction for this fundamental defect in the Court’s § 1983 jurisprudence. Baude dispatches this argument persuasively, relying in part on the work of scholars such as Steven Winter. “Under color of” is a legal term of art that long has encompassed not only individuals acting with authority, but also those acting with the pretense of authority. Section 1983’s breadth is a matter of congressional choice, so the statute does not need some deep, broad extratextual remedial correction like qualified immunity.

Finally, Baude makes plain that qualified immunity cannot be justified by the rule of lenity, because qualified immunity is much more extensive. Dueling cases from various circuits can help demonstrate that the law is sufficiently unclear to shield a government official from civil liability, while the same division of authority does not provide a basis for lenity in criminal law.

Baude’s piece is, almost self-evidently, a bold and important contribution that emerges at a timely moment. The Court in recent decades has often taken a formalist tone with respect to legal doctrines that outpace statutory and constitutional text. And yet, during the same era, the Court has routinely invoked qualified immunity to protect police officers and other government officials, often reversing lower courts that find the doctrine inapplicable. So what do we make of a doctrine that is not justified by traditional modes of interpretation and that routinely blocks accountability? At least one Justice has acknowledged the need for the Court to confront this question. In a concurring opinion this past term in Ziglar v. Abbasi, Justice Thomas cited to Baude’s manuscript and suggested the Court should reconsider its qualified-immunity jurisprudence in an “appropriate case.” In the absence of new justifications for the doctrine that have not yet emerged, it is time to revisit qualified immunity’s scope, its existence, or both.

What Abbasi Should Have Said

Aug 15, 2017 Steve VladeckAdd a Comment

It is a common rhetorical trope among far too many federal judges (including Supreme Court Justices) that legal scholarship is of diminishing utility to them and their work, at least in part because scholars have turned their gaze to topics too far removed from those relevant to the deliberations of contemporary jurists. Most famously, Chief Justice Roberts (who does and should know better) echoed this lament at the 2011 Fourth Circuit conference: “Pick up a copy of any law review that you see and the first article is likely to be . . . the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” The Chief Justice’s ill-informed quip may have gotten the most attention, but he is hardly alone.

There is a lot to say about this general claim. In the specific case of the Chief Justice, much of it has already been said by Orin Kerr.

But the juxtaposition of Jim Pfander’s erudite and magisterial new monograph, Constitutional Torts and the War on Terror, and the Supreme Court’s June 19 decision in Ziglar v. Abbasi, suggests a different (and more alarming) possibility: The problem is not that law professors are failing to produce scholarship of utility to contemporary judges; the problem is that the scholarship that is out there just is not getting read. How else to explain both the result and the reasoning in Abbasi—a decision deeply hostile to judge-made damages remedies for constitutional violations by federal officers, and one that is shamelessly indifferent and stunningly oblivious to the rich history and tradition of such remedies that has been well- and long-documented in the academic literature, most powerfully in Pfander’s book.

I

As Pfander demonstrates, for most of the country’s history, courts and commentators alike unflinchingly embraced the “common-law model of government accountability” (xviii), pursuant to which U.S. officials were routinely subjected to damages liability whenever they invaded the rights of individuals, even foreigners. Whether the liability arose under state common law or the pre-Erie body of federal “general” law, the theory was the same: Judges could—and, indeed, should—fashion remedies to vindicate individual rights, including damages for misconduct that had ceased by the time of the lawsuit. As late as 1963, the Supreme Court was still insisting that “When it comes to suits for damages for abuse of power, federal officials are usually governed by local law.”

Against that backdrop, the Supreme Court’s 1971 decision in Bivens, recognizing that federal judges could imply a damages remedy directly into federal constitutional provisions, was part of a larger shift in patterns of official accountability during the same era—not in favor of increased judicial power, as such, but in favor of federal remedies over state remedies, especially where federal misconduct was at issue. Indeed, there were in 1971 (and remain today) any number of reasons why it makes more sense to treat a case like Bivens as a Fourth Amendment violation, rather than, as the Nixon administration argued, a dispute that could be settled by resort to ordinary state-law trespass principles. Thus, as the second Justice Harlan put it in his concurring opinion in Bivens, once the Court began to prefer federal remedies (including, for example, in suits seeking injunctive relief), allowing judges to imply damages remedies into the Constitution seemed to follow, since “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.”

Much of the rest of Pfander’s book unpacks how, since Bivens was decided, we have lost sight of this understanding—and of Congress’s role, in 1974 and 1988, in taking affirmative steps to bolster, if not enshrine, Bivens. And the real proof of this drift, Pfander persuasively demonstrates, is in lower-court decisions arising out of challenges to post-September 11 counterterrorism policies, where courts have allowed an array of debatable (if not dubious) policy judgments to weigh against recognition of a judge-made damages remedy even for egregious violations of clearly established constitutional rights, most notably the torture of terrorism suspects.

What’s more, these decisions would have left victims of constitutional abuses to state law remedies at the time Bivens was decided. But even that limited avenue is no longer an option, thanks to the 1988 Westfall Act, which has been read to convert all scope-of-employment state tort claims against federal officers into FTCA claims against the federal government. All told, then, the book aspires to “provide[] the tools needed for the Supreme Court to rethink its Bivens jurisprudence,” tools that include (1) a proper understanding of the rich history of judge-made remedies for federal official misconduct; (2) a reassessment of which branch is in the best position to consider the significance of deterrence and indemnification in remedies against government officers; and (3) a recalibration of the doctrine to channel considerations better dealt with elsewhere (e.g., qualified immunity and state secrets) into those avenues. “Only the Supreme Court can implement this new model of litigation,” Pfander concludes, but such a model would “harken[] back to the common-law model that the founders of our Constitution borrowed from England,” and would “enable a federal court to follow the ‘plain path of duty’ identified by Justice Story and ‘to administer the law as it finds it.’”

II

Contrast Pfander’s exhaustive work (both in this monograph and in his vast body of work on related topics) with the sum total of what Justice Kennedy had to say about all of this history and analysis in his opinion for the 4-2 majority in Abbasi:

In 1871, Congress passed a statute that was later codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.

In 1971, and against this background, this Court decided Bivens.

No wonder, then, that Justice Kennedy thought it such “a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation.” As Pfander’s book (and plenty of other scholarship by Pfander and other scholars) shows, it was never understood to be such a significant step until Bivens constitutionalized what had to that point been common-law damages remedies. Justice Kennedy’s response is that damages remedies are especially problematic in national security cases. But his argument to that effect, as I have suggested elsewhere, is normatively incoherent. Instead, as Pfander argues, national security cases are particularly important contexts for robust judicial remedies, especially after the fact.

Even Justice Breyer’s pointed (for him, anyway) dissent, which cites Pfander’s book, misses the forest for the trees—invoking it in support of the proposition that “It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratified Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance.” (Emphasis added). A cursory perusal of the cited authority—Pfander’s book—shows that the story is so much richer and the Court’s abandonment of that history in Abbasi so much more troubling.

*                                     *                                     *

Pfander’s book is a Thing I Like Lots for several reasons. Its substance is, in my view, unanswerable (although it would certainly be useful to see what a thoroughgoing academic response would look like). Its bottom line about the significance of a robust judicial role in national security cases, in particular, could not be timelier. And the extent to which the Supreme Court just ran roughshod over the rich historical and doctrinal analysis it provides is, I fear, a powerful indictment not of the utility of contemporary legal scholarship, but of the Justices’ interest in taking it seriously. I am often reminded, when thinking about how judges use scholarship, of the Scottish writer Andrew Lang’s quip about those who use statistics the way drunks use lampposts—seeking support rather than illumination. Pfander’s book is, and should have been, intensely illuminating. That a majority of the Supreme Court saw otherwise is, and ought to be, far more vexing to legal scholars than the suggestion that we are all too busy writing about “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.”

Secrets and Lies in the History of US Adjudication

Jul 18, 2017 Alexandra D. LahavAdd a Comment

Amalia Kessler’s book, The Invention of American Exceptionalism, is a rich history of American procedural development. The book, which is meticulously researched, sets procedural developments in their political context, and is an excellent example of a social history of law. She describes the relationship between 19^th-century procedural developments and struggles over both capitalism and race. She traces English influences on our history, such as the development of equity practice, and French influences, such as the Freedmen Bureau Courts, which were inspired by French conciliation courts. Among other things, Kessler unearths the American equity tradition and with it fights over judicial power versus lawyer (and jury) power, as well as the development of lawyering as we know it today. There is too much in the book for me to adequately summarize it, so instead I will offer two vignettes from the book, the first conceptual and the second a narrative, both focused on the antebellum history of equity.

The first, conceptual, vignette describes the requirements of historic equity procedure and helps us understand our own practices by making them strange to us. Indeed, one of the best things about reading a historical study such as this is learning to understand our world in new ways by comparing it with a past understood on its own terms. So it is with the story of equity and the judicial search for truth. The modern cliché is that there was never a better test of truth than the cross examination. This idea, Kessler shows, was invented in the first decades of the nineteenth century by lawyers seeking to show their value to clients and to society. In equity practice at that time, a very different view of how to get to the truth prevailed: the truth would be best obtained in secret, without the pressures of the parties bearing down on witnesses to alter their stories.

In its ideal form, equity practice required that the judicial officer (the chancellor or an appointed magistrate) question witnesses in secret. The officer would take notes on the testimony of the witness without the lawyers or parties present. This was the equivalent of what is known today as a deposition. Because it was in secret, the lawyers could not cross examine the witnesses. Indeed, they did not know what the witness told the judicial officer so they could not use that witness’s testimony to prepare other witnesses or their own clients for their deposition. When all the witness testimony was taken and every piece of evidence admitted, the testimony would be published to the lawyers – that is, it would be made public – and no more evidence could be introduced. At that point, lawyers could use the testimony to argue their case. Secrecy was the path to truth-telling.

This is a very different conception of human psychology than that found in the “crucible of trial” formulation so popular today. Instead of getting at the truth under the pressure of that Perry Mason moment when the witness is confronted by her own lies, the truth is obtained by relieving the pressure and allowing the witness room to be honest without attorney intervention or prompting. If the witness could not be influenced during the proceeding by the lawyer, she was more likely to be truthful. If the attorney could question her and prepare her to conform her testimony to that of other witnesses, she was more likely to misrepresent the truth to favor one or the other of the parties. This is similar to the principle that governs the German system today, as I understand it, in which the judge questions the witnesses and preparing a witness for testimony is an ethical violation. Not so in our system, where lawyers conduct depositions outside the judges’ presence and not preparing a witness is malpractice.

What happened to the idea that truth is best obtained in secret, without lawyer involvement? In his masterful history of procedure, How Equity Conquered the Common Law, Steve Subrin argued that the Federal Rules of Civil Procedure largely represent equitable practices rather than those of common law courts. Yet our rules and trial procedures depend on lawyer-led interrogation with no judge present; we cannot even imagine judges questioning witnesses in secret unless the matter concerned national security. How can this be? The answer is partly structural. The equity courts during the period Kessler covers were understaffed and therefore appointed magistrates, rather than permanent commissioners, to interview witnesses. Because the magistrates were not familiar with the case and were sometimes in the pockets of the lawyers, they became increasingly dependent on the questions lawyers submitted in advance of depositions. In fact, they became something more like stenographers than investigators. Ultimately, driven by the fiscal and structural constraints and by the constant pressure of the bar, equity courts in New York abandoned secrecy and permitted lawyers to attend depositions. The problems and complaints about equity meant that for many years—and especially as his tenure neared its end—Chancellor Kent may have been one of the most hated men in New York. (Kent was one of the most famous jurists of his day and is often praised in procedural histories as the father of equity practice in the United States).

Lawyers, argues Kessler, wanted the opportunity to show off to justify their fees, and the way to do that was to transform litigation into a kind of spectacle, which in turn required lawyers to erode the secrecy that characterized equity practice. Secrecy limited their ability to perform for their client. Lawyers styled themselves as great orators, comparing their role favorably to Cicero, and attempted to reposition themselves as servants of the public good so that they might stave off accusations that they were manipulating legal process to increase their fees. The accusation that “doing well by doing good” is self-serving clap-trap should sound familiar to the modern ear.

One could not reasonably disagree with Kessler’s assessment that manipulation was part of the story of professionalization of the bar that in the mid-1800s. But there is something incomplete about this description of lawyers (then and now). The example that comes to mind is Richard Henry Dana, a Boston lawyer who in the 1840s and 50s represented fugitive slaves and persons tried for attempting to forcibly free them, as well as commercial clients. Dana wrote in his diary that his representation of fugitives brought him support from the Boston community and thus more clients, helping him to build his commercial legal practice. But Dana took a risk standing up to the slave power, which was strong in Boston (where the local mercantile elite benefitted greatly from slavery), and was attacked and severely beaten by a ruffian on the streets of Boston for doing so.

The issue of controlling lawyer behavior is a theme that runs through the book, one that is crucial to the policy questions (past and present) about lawyer-versus-judicial control over proceedings. This is one core aspect of the adversarialism to which Kessler’s title refers. And it brings me to the second vignette, a wonderful story from the courts of equity in late-seventeenth-century England that provides great insight.

A lawyer managed to get his case into the chancery court and this gave him an advantage over his adversary, who was only familiar with common law practices. How so? The lawyer knew the commissioner who had taken the testimony of his witness in the case and obtained (wrongfully) the transcript of that witness’s testimony. Recall that once all the evidence was taken in a case at equity, the judge closed the case by “publishing” the deposition transcripts. This lawyer took it upon himself to publicize the transcript after the first witness (his witness) had testified. He did this by coming to his rival’s office and reading the statement to him out loud. The common-law lawyer took his client immediately to the equity court and asked to provide his client’s side of the story. Unfamiliar with equity practices, he revealed to the commissioner that his opponent had read him the testimony. This was a disaster for his client. The commissioner told him that he would now close the case to further evidence, as the testimony had been publicized.

What does this story teach us? That some gamesmanship is unavoidable in any procedural system, and always has been – at least since the late 1600s. No matter what rules are adopted or protections created, unscrupulous actors will abuse their power, cheat their adversary, and distort the system of which they are a part. Within the judicial system, this is true not only of lawyers, but also of judges and magistrates. A court system, in the end, depends on the people who use it and the people who staff it. The problem, in other words, is not only the system but the participants. Out of the crooked timber of humanity, no straight thing was ever made.

The procedural system plays a crucial role in what people can and cannot get away with, and the norms within that system play a role in what people will and will not do. However well-designed the system, abuses are inevitable. The philosopher Stewart Hampshire argued that moral conflict is eternal and that one must focus on procedures that allow contestation of moral norms. The court system offers one such set of procedures, but they are always eroding, in need of shoring up, and in danger of being distorted. The procedures themselves are a site of moral conflict. Kessler’s book is important because it reminds us both that these battles have been going on forever and that understanding past fights helps open possibilities for reform in the inevitable future conflicts.

On Gender Disparity and Dialogue

Jun 16, 2017 Nancy Leong1 comment

Jennifer Mika’s essay examining the scarcity of women arguing before the Supreme Court is a valuable contribution to a growing literature tracking gender disparities at all stages of the legal profession. Research has examined disparities in the way men and women experience the law school classroom, interact with professors, obtain clerkships, make partner at private firms, enter academia, gain tenure, and leave the profession altogether. Mika has made several contributions to this area of research.

In her latest work, Mika’s findings are stark. She draws upon two original data sets: one including every attorney who argued before the Supreme Court during the 2015-2016 term; the other including every attorney who has argued more than once in any term since 2010. During the 2015-2016 term, of the 117 people who argued before the Supreme Court, only 20 were women, or 17%. And since 2010, only 15 of 80 advocates who argued more than one case before the Supreme Court, or 19%, were women.

Mika also accumulated revealing data regarding the employers of the men and women who argued before the Court. During the 2015-2016 term, of the women who argued, 35% were from the Office of the Solicitor General, another 35% were employed by other federal government entities (for example, attorneys from various divisions of the Department of Justice) or state governments, and 25% were in private practice. This distribution contrasts sharply with the distribution of men: only 12% were from the Office of the Solicitor General, 16% were employed by federal or state governments, and 67% were from private practice. In other words, women were much less likely than men to argue before the Supreme Court from private practice. Indeed, only four of the 80 repeat advocates since 2010 were from private practice.

From there, Mika suggests possible explanations for the disparities. Here, the essay is admirably restrained: legal scholars often try to point to a single factor as the explanation for the phenomenon they are discussing. Mika, on the other hand, emphasizes that the explanations for the disparity are likely multiple and that her discussion is likely incomplete. Rather than attempting anything like an exhaustive explanation, she focuses on two possible causes.

The first and more persuasive explanation is the paucity of women partners at private law firms. A woman in private practice who argues before the Supreme Court will most likely be a partner, not an associate. And since women are dramatically underrepresented among partners at private law firms, it is statistically less likely that clients who seek representation from the private sector will select a woman advocate rather than a man. Of course, this explanation merely leads to another question: why are there fewer women than men who are partners at law firms? Since many law firms now hire men and women in equal numbers, the disparity at the partner level is due to attrition. A significant literature has contemplated the causes of this attrition, with plausible hypotheses ranging from the “old boys club” atmosphere of some firms, to a lack of female mentorship, to parental leave policies that disadvantage women, to subtle and perhaps subconscious bias against women that creates a negative work environment, to straightforward discrimination because of gender.

Whatever the cause of the dearth of women partners, Mika does not contemplate an interesting and related question. Suppose that the numbers of men and women partners at private law firms were equal. Would the disparity in the number who argue before the Supreme Court disappear as well? One can think of reasons that perhaps it might not. For example, even if women partners are available in equal numbers, biases among private sector clients might lead to a preference for men as Supreme Court advocates. Moreover, the most relevant comparison is arguably not to law firm partners as a whole, but to the subset of law-firm partners running the appellate practice subgroups in large law firms or working at boutique appellate litigate firms. This specialized subset of partners is disproportionately comprised of former Solicitor Generals or Deputy Solicitor Generals, who also tend to be men—indeed, the only female former Solicitor General, Justice Elena Kagan, is for obvious reasons conflicted out of arguing before the Court.

Somewhat less persuasive is Mika’s evidence for a clear causal link between clerking and becoming a Supreme Court advocate. Most Supreme Court advocates have clerked, and of those a not-insignificant subset have clerked on the Supreme Court. Mika observes that—of repeat advocates since 2010—53% of women advocates and 65% of men advocates have clerked on the Supreme Court. She reasons: “[w]hile Supreme Court clerkship experience does not appear to directly impact an advocate’s likelihood of becoming a Supreme Court advocate generally, it does appear to be an important experience for attorneys interested in becoming a frequent Supreme Court advocate and, by extension, a Supreme Court expert.” She further observes that fewer than one-third of Supreme Court clerks have been women in each year since 2010. While the connection among clerking, clerking on the Supreme Court, and becoming an advocate before the Supreme Court is intuitively plausible, the data suggest there is a relationship between the latter two, but that a Supreme Court clerkship is by no means a requirement. Nearly half of women and over a third of men who become repeat advocates before the Court do so without a Supreme Court clerkship. Still, Mika’s framing of the possible connection is appropriately limited, and she notes that future research may illuminate—or eliminate—the possibility of a causal link.

More broadly, Mika explains that her essay “strives to start a dialogue about how the gender gap in Supreme Court advocacy can be closed.” The goal is admirable given that many people are determined not to have conversations about gender disparities in general, and gender disparities within the legal profession in particular.

A decade ago, when I was a third-year law student, I noticed a striking gender disparity in the notes published in the Stanford Law Review each year. As a member of that journal, I sought information from my fellow editors about the number of men and women who submitted notes for publication. I reasoned that a publication disparity that tracked a disparity in the number who submitted notes would suggest one explanation, while a publication disparity greater than the submission disparity would suggest another. But the issue remained unexplored: my fellow editors informed me that providing me with the information I sought would raise “confidentiality concerns.” Of course, that explanation could not be the real explanation: someone had the information about who had submitted notes each year, and all I needed was the total number of men and of women who submitted notes, not their actual names.

Dialogue resistance continues today. Not long ago Brian Leiter published a set of his citation rankings, and I wrote up a blog post in which I considered why most of the most cited academics are men. A senior white male professor vehemently insisted to me on social media that obviously men are cited more than women because men publish more than women. When I responded with some data indicating a disparity in per-paper citations, he dismissed it by saying that men and women were both cited “between eight and sixteen times per paper.” Without picking up my calculator, I was pretty sure that the difference between eight and sixteen was a fairly substantial one—and I was pretty sure my interlocutor knew it—but he was tenured and at the time I was not. So I let it go.

The larger point is simply that we should not let the dialogue go. We should not be afraid of asking hard questions, of collecting data and allowing those data to lead us to the most plausible conclusions. My sense is that many well-credentialed white men are, on some level, afraid of examining gender disparities because they are afraid of what it might say about their own achievements. Investigation might well reveal that their accomplishments are due not only to intelligence, skill, and hard work, but also to social factors ranging from implicit bias to workplace leave policies. Admitting that the playing field might not be entirely level forces us to confront the possibility that at some point, some of us might have gotten things we did not earn purely on merit. That is a hard thing to confront. But a fear of the truth is not a reason to avoid dialogue about gender disparity.

Mika’s paper presents interesting and important data and discusses those data in a thoughtful way. Future investigators would do well to build upon her research. Her work contributes to the gender disparity dialogue, and I liked it a lot.