Archive | Judicial

Everybody must get stoned

Jeffrey Toobin reports:

I asked Ginsburg whether some people really believe that the Constitution means only what it meant in 1787.

“Nobody thinks that entirely—nobody, not even my dear colleague, you know,” she said, referring to Scalia. “Think of cruel and unusual punishment. Just go to the jail at Williamsburg. We don’t put people in stocks anymore. It would certainly be, in anybody’s book, cruel and unusual to give somebody twenty lashes, to hang you for being a horse thief.”

I agree on the “hang you for being a horse thief” part. I think I’m on safe ground opposing capital punishment for horse theft. Back in the old days, they used to execute people for forgery, but nowadays the penalties for that crime are less severe.

But I disagree with Ginsburg, at least in theory, on flogging. See P.S. here. Sticking someone in prison for several years, that’s what’s barbaric nowadays. And I’m disappointed to see a federal judge making the statement above in a seemingly unthinking implicit endorsement of the way things are done now.

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The Supreme Court meets the fallacy of the one-sided bet


Doug Hartmann writes (link from Jay Livingston):

Justice Antonin Scalia’s comment in the Supreme Court hearings on the U.S. law defining marriage that “there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.”

Hartman argues that Scalia is factually incorrect—-there is not actually “considerable disagreement among sociologists” on this issue—-and quotes a recent report from the American Sociological Association to this effect. Assuming there’s no other considerable group of sociologists (Hartman knows of only one small group) arguing otherwise, it seems that Hartman has a point. Scalia would’ve been better off omitting the phrase “among sociologists”—-then he’d have been on safe ground, because you can always find somebody to take a position on the issue. Jerry Falwell’s no longer around but there’s a lot more where he came from. Even among scientists, there’s a large enough minority with traditional moral values, that it shouldn’t be hard to find some who feel strongly that it’s harmful to raise a child in a single-sex family.

But what I really want to talk about here is not scientific consensus (which, after all, can be wrong) but a little-noticed (as far as I can tell) aspect of Scalia’s statement, which is that it’s an example of the fallacy of the one-sided bet, an argument that is artificially restricted to go in just one direction. Scalia’s saying that raising a child in a single-sex family might be “harmful to the child” or maybe not. But by framing it this way, he’s implicitly excluding a third possibility, which is that being raised in this way may be helpful to the child. What do I really think is happening? I think that the same-sex-parents environment will be helpful to some kids, harmful to others. Assuming the American Sociology Association report is correct and the research doesn’t find any aggregate effect, that would suggest that some kids are helped and some are hurt, with no clear evidence that the average effect is positive or negative. So, from the data, the effect could be positive, or it could be negative, or it could be small enough on average to consider as zero. And, just from prior reasoning, I could imagine an effect that is positive (gay parents try harder and they could be less likely to have unwanted children) or negative (maybe it’s better to have parents of both sexes and not to have to face prejudice from outsiders). I don’t know, apparently the data don’t know either. But by framing his statement the way he does, Scalia is excluding the possibility entirely.

In all this discussion I’m sidestepping the causal questions, how one might consider formulating hypothetical interventions, whether one would want to consider the “treatment” at the level of individual families or state-level policies, and the difficulties of statistical identification. These issues are important—-indeed, central to any discussion of this issue—-but here I want to focus on the one-sided argument, which is such a pervasive fallacy. I keep hoping that, by giving this error a name, I can reduce its incidence.

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The ICC, Deterrence, and Amnesty

As usual, I agree with most of what Jim Fearon has to say on the ICC; most notably that the ICC’s effect on reducing the worst sort of abuses is questionable. Yet, I don’t quite buy his two mechanisms for how the ICC may increase human rights abuses. My own tentative view is that the ICC likely has little meaningful effect on deterring or encouraging the worst forms of human rights abuses but may have a marginally positive effect at reducing abuses in countries where “mid-level” human rights abuses occur; not unlike the international human rights regime more generally.

Fearon rightly argues that  Ntaganda likely surrendered to the ICC because his most likely alternative was to get killed:

So is that a great victory for the ICC? His surrender ends the embarrassment of having Ntaganda on the loose committing more crimes, but if the general principle is [that] the ICC is a way to save yourself from death if things get too hot, then the institution is potentially encouraging, not deterring, human rights abuses.

I have two comments on this. First, what Kathryn Sikkink has termed the “justice cascade” is not just about deterring human rights abuses but it is also importantly about the idea that punishment for human rights violations should be done through free and fair trials rather than vigilante justice. In that sense the Ntaganda case could be a victory for the ICC.

Second, there is no clear evidence that the death penalty has a deterrent effect over jail time in the U.S. Why then would we believe that jail versus death would much alter the calculus of someone like Ntaganda who has been fighting in murky and bloody conflicts for more than two decades? I suspect that an institution that would affect the probability of getting caught would matter a lot but not whether a perpetrator might face death or life in prison. Should we not prefer a just solution if this is the case?  Continue Reading →

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Will Comparative and International Examples Influence the Gay Marriage Decision?

The U.S. Supreme Court somewhat controversially cited  foreign (non-British) case law  in Texas v. Lawrence (2003, a gay rights case) and Roper v. Simmons (2005). This led to a backlash and the Court has studiously avoided citations to foreign and international courts in more recent decisions. This hasn’t stopped amici from filing briefs both  pro and con gay marriage rights based on foreign and international law (the pro brief cites a paper of mine with Larry Helfer).

There are two ways in which international and comparative examples may matter. First, even if the Court is unlikely to cite foreign or international case law some judges, most importantly Justice Kennedy, are known to value the comparative perspective. There was an easy opportunity for the con side here. Justice Scalia famously noted in his dissent in Roper that:

To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry.

In other words, he accuses liberals of resorting to foreign law only when it confirms their predispositions. There are judicial opinions, most notably in the European Court of Human Rights, which find that international human rights law does not require legalization of gay marriage. The pro brief does not deny this but highlights that nowhere gay marriage has been been taken away after it had been legalized. Moreover, there is a distinct trend towards recognition of equality and gay marriage. The brief also appeals to the notion that the Justices may be concerned about the waning international influence of the Court. Opinio Juris has more on the two briefs.

The second, and perhaps more important, way in which international examples matter is in the evidence they provide for the beneficial or deleterious effects of gay marriage. In the oral arguments, Justice Kennedy mentioned the “sociological evidence” several times (here is a brief by the American Sociological Association). Here is what Justice Alito had to say:

I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a—a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?

Clearly, Alito is not yet persuaded by the social science evidence but suggests that he might be at some future point. Moreover, this suggests that the comparative social science evidence may be important. Would that be sufficient for a political scientist to claim that such research is “in the national interest?”

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9 Things You Should Read about the Politics of Same-Sex Marriage

As oral arguments get underway at the Supreme Court, here are a bunch of links to what we and other political scientists have written about gay marriage of late:

  1. An amicus curaie brief by 12 political scientists regarding Hollingsworth v. Perry.  They argue that gays and lesbians lack political power and this bears on the question of laws that disadvantage them.

  2. Ben Lauderdale and Tom Clark argue that if Kennedy is the swing justice, arguments in favor of same-sex marriage should center on due process (where Kennedy is on the left) than civil rights or federalism (where he is on the right).

  3. William Blake notes that Catholics on the Court tend to vote in favor of Catholic teachings, even once their political ideology is taken into account.

  4. Keith Poole maps the House and Senate votes on DOMA in 1995.

  5. Do conservatives’ arguments in favor of gay marriage work?  A cautionary tale.

  6. Does Congress have a conservative bias on gay rights?  Do state legislative candidates?  The answer in both cases seems to be: yes.

  7. Why same-sex marriage so often loses at the ballot box.

  8. David Karol on the myth of “social issues,” or why the politics of gay rights and abortion are so different.

  9. Erik compares support for same-sex marriage in the U.S. and Europe.

Apologies for getting all Buzz-feedy with the title of the post.

UPDATE: And now with a bonus tenth thing!  Here is David Fontana on why a Court ruling in favor of same-sex marriage might not produce a backlash.

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Does Congress Have a Conservative Bias on Gay Rights Issues?

Justice Scalia argued in his dissent in Romer that:

This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected

This fits a more broadly held perception that laws are more progressive on LGBT rights than voters would like them to be because elites are more liberal. A new working paper by Katherine L. Krimmel, Jeffrey R. Lax, and Justin H. Phillips (all Columbia) shows that this presumption does not hold for members of Congress. Indeed, the results imply the reverse. The authors use a method developed (in part) by our own Andy Gelman to estimate public support in Congressional districts for specific policies related to gay rights. They then compare public opinion to the actual roll-call votes of Congressmen. One of their key findings is that there is a conservative bias in Congress: on average public support in a district for a liberal policy towards gays needs to be well over 50% for a Congressman to vote in favor of that policy. Moreover, when opinion in a District changes, Democrats are much more likely to change their votes than Republican Congressmen.

The figure below illustrates their findings for the Don’t Ask Don’t Tell issue. There were only small pockets in the country where majorities opposed changing the policy. Votes against it in Congress were much more numerous than we would expect from public opinion. The paper is very rich in empirical detail, so go read the whole thing.

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What if the Supreme Court Eliminated Noncitizen Representation?

We are delighted to welcome back Karthick Ramakrishnan


Next week, the Supreme Court will hear the petition of Lepak v. City of Irving, to decide whether the principle of “one person, one vote” should be clarified to allow the exclusion of noncitizens.

 Plaintiffs in the case argue that counting noncitizens dilutes the influence of eligible voters, while others argue that the United States has, from its founding, counted persons such as slaves and women for purposes of representation, even if they did not have the right to vote.  States with high proportions of noncitizens have a lot at stake in this debate, given its potential to affect decisions ranging from House apportionment to the drawing of state and local legislative districts.

 If the Supreme Court allows for the exclusion of noncitizen residents, how would it affect Congressional apportionment?  We can calculate these effects using the following method: compiling data from the U.S. Census Bureau on total persons and total noncitizens, calculating what the House apportionment would look like if noncitizens were excluded (using the current method of equal proportions), and taking the difference from the actual allocation of seats based on total persons counted in 2010.


When we conduct this type of analysis for the current apportionment cycle, we find that gains from a policy shift would be relatively modest across states, but losses would be significant for California and Texas (see Table).  If, moving forward, only citizens were counted for purposes of apportionment, a total of 10 seats would be allocated differently.  California would stand to lose the most House seats (5), followed by Texas (2), Florida (1), New York (1), and Washington (1).  By contrast, various states in the Midwest region would gain one seat each.

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The ABA Prefers White Men

Maya Sen (University of Rochester) shows in a working paper (pdf, ungated) that the American Bar Association (ABA) has systematically assigned lower judicial qualification ratings to minority and female nominees for U.S. District Courts. This finding holds after controlling for observable characteristics (via matching) that may be associated with qualification; such as the quality of the law school where a nominee got her law degree, how much experience she has practicing law, and whether this experience was attained as a law clerk, a public defender, a judge (of several varieties), or in some other role. Partisanship plays little role in the qualification ratings for these lower Court judges (in contrast to appointments to Federal Courts of Appeals).

Sen also shows that getting a lower qualification rating is correlated with a reduced confirmation probability. On the other hand, qualification ratings are not correlated with an indicator for judicial quality (high reversal rates). This suggests that the ABA does not have some sort of private information about the true quality of judges that is not captured by observable characteristics of judges.

These findings are important not just because of the direct effect of qualification ratings on the composition of district courts but also for what they say about the process of how the legal profession evaluates qualification more generally. The ABA rates judicial candidates in a non-transparent way on subjective qualities such as their “judicial temperament.” But what is temperament? Is it possible that temperament becomes associated with certain mannerisms of respected judges who all happened to be white men? And why does the ABA gets to play this role anyway? Is there any evidence that the ABA has private information that once revealed would make the functioning of the judiciary better? This question is important too because there is ongoing discussion about the benefits of having judges appointed via professional associations rather than politicians or electorates.

One downside of the paper is that it estimates an average effect between 1960 and 2012. It is plausible that things have changed in this time as more women and minorities have set examples as judges and have entered the ABA’s evaluation committees. This is difficult to study given the somewhat low numbers of female and minority candidates. Still, I was struck by how the Standing Committee on the Federal Judiciary now defines “judicial temperament:”

In evaluating “judicial temperament,” the Committee considers the prospective nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.

I doubt this is how they defined it back in 1960 (of course there is no guarantee the actual Committee pays any attention to this definition). In any way, I really enjoyed this paper and would like to see more systematic studies of the role of professional associations.

ps. some small corrections added (see comments)

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Recess is Over?

You will recall that in January 2012, President Obama named Richard Cordray to head the Consumer Financial Protection Bureau and three new members to the National Labor Relations Board, all by recess appointment. The catch was that the Senate was not in recess—or at least said it wasn’t. Since 2007, originally in response to George W. Bush’s aggressive use of recess appointments (he made 170+ ) and then via Republican pressure after Obama took office, the Senate has held brief pro forma sessions even during periods of legislative inactivity, purportedly preventing Senate recesses of sufficient duration to allow for recess appointments.

The Obama administration argued that since the Senate did not – perhaps even could not (there is some dispute here) – conduct regular business during these sorts of sessions, it was not available to perform its advise and consent function. Thus it was de facto in recess and such appointments could in fact be made.  Sarah Binder’s post from the time detailing this is here; Nolan McCarty’s take is here. Much useful background may also be found in this CRS report on the subject.

Other than a predictable slate of kudos and denunciations, correlated rather heavily with partisan preference, the Senate made no formal response back in January 2012. But those regulated by the CFPB and NLRB did. A series of court cases ensued challenging the legality of the actions taken by the appointees appointed in this manner. So, pro forma meets de facto meets the D.C. Circuit Court of Appeals—which late last week ruled against the NLRB appointments.The full opinion is here (those wishing to cut to the recess appointment chase may jump to the bottom of p. 15.)

Actually the court went much farther than merely holding that the Obama appointments override the Senate’s prerogative to decide for itself when it is in recess. Indeed, the opinion turns on an allegedly emphatic difference between the Senate being in recess, and “the Recess of the Senate” envisioned in Article II, Section 2:3. After reviewing the grammatical distinction between “a” and “the,” the court comes to the (or at least an) “inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” This, the opinion goes on, “is not an insignificant distinction. In the end it makes all the difference.”

Indeed it does, at least to the court’s logic, and potentially to the recess appointment power. According to the ruling, “The Recess” must be the period between Senate sessions—thus, during the interim between (say) the 110th Congress, 1st session, and the 110th Congress, 2nd session, provided that the Senate has adjourned, sine die, in between.  Despite the fact that intrasession appointments have occurred since 1867, and with some regularity in the postwar era, the court’s decision declares that practice off limits.

Further, the court goes on, only vacancies that actually come into being during a Senate recess (sorry, during “The Recess”) can be filled in this way. A vacancy that has existed since before said Recess doesn’t count. This, too, has some grammatical support within Article II —which holds that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate”—but goes against what had seemed to be well-settled practice. To quote another CRS report: “Although this question was a source of controversy in the early 19th century, Attorneys General and courts have now long supported the first, broader interpretation of the phrase.” That is, they have held that ‘may happen’ should be read ‘may happen to exist.’

I tend to agree that the Obama administration overstepped. In its memo a year ago, the DOJ’s Office of Legal Counsel concluded that “the President… has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”  As the court responded, “This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” Was the president acting rationally, in the face of opposition obstructionism? Certainly. That doesn’t mean his actions were legal, or should be applauded.

On the other hand, to retroactively impose a definition of “recess” that goes against 145 years of practice is itself overreach. While the DC Circuit’s opinion is drenched in the judiciary’s favorite self-congratulatory perfume – Eau de Marbury v Madison – its logic is perhaps not self-evident. Note that there is an 11th Circuit Court of Appeals ruling from 2004 (when Democrats in the Senate challenged a judicial recess appointment made by President Bush) that upheld the appointment (in quite different circumstances, when the Senate was indubitably in recess, albeit not between sessions.)  That decision held explicitly that “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause” (p. 8).  CRS notes more broadly that while there is more controversy over intrasession recesses than those between sessions, “through interpretation and practice, a ‘Recess’ for purposes of the Recess Appointments Clause encompasses both the inter- and intrasession recesses of the Congress.”  (The DC Circuit dismisses out of hand the 11th Circuit’s reasoning, even as it professes “respect for our sister circuit” (see pp. 26ff).)  One practical objection to the present holding would be to wipe out not just administrative decisions made by recess appointees over time (since 1867?) but, presumably, to vacate decisions made by judges appointed this manner.

In any case, even things that are self-evident are not always self-executing (to borrow a phrase)—and it is worth remembering that constitutional ambiguities between the branches are normally worked out in practice. Even when the Supreme Court declared that legislative vetoes were unconstitutional, in the 1983 Chadha case, Congress and the president continued to put them into law—because they were too useful a powersharing device to set aside.  Likewise one imagines that the last word – and the last recess appointment – is some ways off.

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