They have spouses, children, and friends: Roxanne Roberts and Amy Argetsinger, “A Truly Exclusive Washington Party: Antonin Scalia Hosts Justices to Toast New Henry Friendly Bio,” Washington Post, May 1, 2012, http://www.washingtonpost.com/blogs/reliable-source/post/a-truly-exclusive-washington-party-antonin-scalia-hosts-justices-to-toast-new-henry-friendly-bio/2012/04/30/gIQAR2vYsT_blog.html.
Justice Scalia reads two newspapers: Senior, “In Conversation.”
As he told a journalist: Senior, “In Conversation.”
He was tipped over the edge: Senior, “In Conversation.”
He “usually” listens to talk radio: He particularly likes Bill Bennet. Senior, “In Conversation.”
In the past, he went to dinner parties: Senior, “In Conversation.”
And you may surround yourself: While judges like to trot out examples of clerks they hired who had different worldviews (likely to bolster their self-affirming views as neutral and unbiased), such actions are exceptional. As Justice Scalia has explained, “I’ve said often in the past that other things being equal, which they usually are not, I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives….The trouble is, I have found it hard to get liberals…who pay attention to text and are not playing in a policy sandbox all the time.” “In Conversation With Antonin Scalia,” New York, http://nymag.com/news/features/antonin-scalia-2013-10/index6.html. In fact, empirical research shows that the hiring of clerks has taken on an increasingly partisan character over time. So, for example, 92.7 percent of Justice Scalia’s and 100 percent of Justice Thomas’s clerks served for a lower federal court judge appointed by a Republican president. William E. Nelson, Harvey Rishikof, I. Scott Messinger, and Michael Jo, “The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation,” Vanderbilt Law Review 62 (2009): 1775–76, 1780.
But search engines are themselves: Larsen, “Confronting Supreme Court Fact Finding.”
Many of them create filter bubbles: Eli Pariser, The Filter Bubble (New York: Penguin Press, 2011).
In essence, without your awareness: Larsen, “Confronting Supreme Court Fact Finding,” 36. Moreover, judges are not usually in a position to assess how much weight to place in a particular source. In many cases, they simply do not have the expertise to assess the methodology of research or place the findings in context. Though he is a not-infrequent offender when it comes to in-house fact-finding, Justice Scalia has offered the most pointed criticism of the Court on this score: “an adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.” Larsen, “Confronting Supreme Court Fact Finding,” 34–35.
The problem is compounded by the simply overwhelming amount of data available on any question that might be asked. There was a point in the recent past when information was held primarily in books and other print resources, which limited the number and quality of information providers, as well as the ability of a judge to access the information. He or she had to go to a library or research facility, wait for a book or journal to be retrieved, and, then, flip page-by-page to search for the relevant information. Today, in real time, a judge can read a rare book on early-English judicial procedure held by Cambridge University, sift through the entire canon of law review articles in search of a particular term, and gain access to nearly every social science study published in a major scholarly periodical over the last decade. It is easy to get buried under the ever-increasing weight of information. Larsen, “Confronting Supreme Court Fact Finding,” 38. Typing “danger from police chases” into Google, for example, yields 26,900,000 results. Which of those pages holds the truth?
The adversary system was designed so that the different sides of a case or controversy could resolve that question by scrutinizing and challenging the evidence provided by the other side or sides. Larsen, “Confronting Supreme Court Fact Finding,” 34–35. But when judges go looking for their own facts, there is no such oversight. Larsen, “Confronting Supreme Court Fact Finding,” 34–35. The traditional gatekeeping function of the trial court is lost; indeed, the gates are flung open. Justices are free to disregard the information sources available—the briefs and lower court record—when those sources do not contain what they want to hear and go in search of conforming evidence to support their preconceived notions. Allison Orr Larson, “The Trouble with Amicus Facts,” Virginia Law Review 100 (2014).
A related problem comes from amicus curiae briefs that were once fashioned as impartial “friend of the court” supplements to aid justices in understanding the unique facts of a case, but that have developed into an inexpensive way for outside parties to advocate for particular positions. Larson, “The Trouble with Amicus Facts,” 1765–68. As a result, in important cases, the Supreme Court may be swamped by a sludge of unvetted and dubious facts, which the justices then paw through in hopes of finding a few nuggets to add a sparkle of legitimacy to whatever position they already hold. Larson, “The Trouble with Amicus Facts,” 1763–64. To make matters worse, instead of carefully scrutinizing the original sources, the justices often appear to uncritically accept the second-hand account on offer and cite in opinions directly to the briefs as authorities. Larson, “The Trouble with Amicus Facts,” 1779.
The ultimate result is deep unfairness, both to the parties who are supposed to have a right to participate in the development and interrogation of the key facts of the case, as well as to all of those who are affected by the Court’s decisions and who are entitled to legitimate process. Larsen, “Confronting Supreme Court Fact Finding,” 43.
Amicus curiae briefs: Larsen, “The Trouble with Amicus Facts,” 1757.
Although they often purport to: Larsen, “The Trouble with Amicus Facts,” 1757, 1763.
And members of the Court draw from: Larsen, “The Trouble with Amicus Facts,” 1763–64, 1785–86; Liptak, “Seeking Facts.”
With dozens of amici: Larsen, “The Trouble with Amicus Facts,” 1757; Liptak, “Seeking Facts.”
Until recently, at the 36th Street subway: “MTA Fixing Trippy Brooklyn Subway Stairs After Dean Peterson’s Hilarious Viral Video,” Huffington Post, June 28, 2012, http://www.huffingtonpost.com/2012/06/28/mta-fixing-trippy-brooklyn-subway-stairs-dean-peterson_n_1634229.html; Katy Tur, “MTA Blocks Staircase After Viral Video Shows People Tripping on Same Subway Station Step,” NBC New York, June 29, 2012, http://www.nbcnewyork.com/news/local/Subway-Stair-Tripping-People-Fall-Steps-Brooklyn-Station-36-Street-Sunset-Park-MTA-160629545.html.
Every day it caused numerous people to: Tur, “MTA Blocks Staircase.”
But no one did anything: “MTA Fixing Trippy Brooklyn Subway Stairs.”
The guy who nearly: “MTA Fixing Trippy Brooklyn Subway Stairs.”
The woman who fell: “MTA Fixing Trippy Brooklyn Subway Stairs.”
They caught their balance: Tur, “MTA Blocks Staircase.”
Few, if any, blamed the step: “MTA Fixing Trippy Brooklyn Subway Stairs.”
In under an hour: Dean Peterson, “New York Subway Stairs Gag: Dean Paterson Films Straphangers Enjoying Their ‘Trip’ (Video),” Huffington Post, July 5, 2012, http://www.huffingtonpost.com/2012/06/27/new-york-subway-stairs-dean-paterson_n_1631674.html?utm_hp_ref=new-york.
And within a day of the evidence: Tur, “MTA Blocks Staircase.”
But if no one is keeping: There is an interesting analogy to the revolution in baseball entailed by the rise of Sabermetrics. Phil Birnbaum, “A Guide to Sabermetric Research,” Society for American Baseball Research, accessed November 7, 2014, http://sabr.org/sabermetrics. As the godfather of Sabermetrics, Bill James has revealed the sophisticated statistical analysis of baseball that begun in the 1980s would never have been possible without the great data that had accumulated over many decades as
a result of the decision by people back in the nineteenth century to keep really detailed records of games. Bill James, “Keynote Speech at the Conference on Empirical Studies,” Penn Law School, Philadelphia, PA, 25 October 2013, Keynote Address.
It was the Boston Globe’s analysis: Marcella Bombardieri, Jonathan Saltzman, and Thomas Farragher, “For Drunk Drivers, a Habit of Judicial Leniency,” Boston Globe, October 30, 2011, http://www.boston.com/news/local/massachusetts/articles/2011/10/30/for_drunk_drivers_a_habit_of_judicial_leniency/?page=full.
In 2010, 82 percent of defendants: Bombardieri, Saltzman, and Farragher, “For Drunk Drivers.”
In interviews, the judges themselves: Bombardieri, Saltzman, and Farragher, “For Drunk Drivers”; Jonathan Saltzman, Marcella Bombardieri, and Thomas Farragher, “A Judicial Haven for Accused Drunk Drivers,” Boston Globe, November 6, 2011, http://www.boston.com/news/local/massachusetts/artides/2011/11/06/ajudicial_haven_for_accused_drunk_drivers/. It is unclear why judges were so much more inclined to support drunk driving defendants than jurors were, but one theory is that because the evidence in such cases is highly repetitive (e.g., most police reports include a nearly identical description of bloodshot eyes, slurred speech, and the odor of alcohol on the breath), judges who hear the same thing over and over may become more skeptical that the routine description of events is genuine in a given case and apply a stricter reasonable doubt standard than do jurors for whom the evidence is novel. R. J. Cinquegrana and Diana K. Lloyd, Report to the Supreme Judicial Court (Boston: Choate, Hall & Stewart LLP, 2012), 32–34.
The journalists’ work prompted: Brian Fraga, “Nearly Two Dozen State Judges Acquit 95 Percent of OUI Defendants in Bench Trials, Report States,” Herald News (Fall River, MA), November 1, 2012, http://www.heraldnews.com/news/x303002561/Report-details-high-rate-of-OUI-acquittal-by-nearly-two-dozen-state-judges?zc_p=1. With respect to “judge shopping,” for instance, the report suggested rotating judges and making jury waiver rule changes to require the consent of the prosecutor (in order to switch to a bench trial) and the exercise of the waiver prior to the assignment of the trial date. Cinquegrana and Lloyd, Report to the Supreme Judicial Court, 46–48. Although acknowledging that some of the changes required action by the legislature, the Massachusetts Supreme Court Justices did embrace certain suggested reforms, including instituting better training of judges in the handling of scientific evidence. Statement of the Justices of the Supreme Judicial Court, November 1, 2012: 5–6, http://www.mass.gov/courts/docs/sjc/docs/sjc-statement-110112.pdf.
These ongoing reform efforts: Saltzman, Bombardieri, and Farragher, “A Judicial Haven.”
If the Massachusetts Trial Court had: Bombardieri, Saltzman, and Farragher, “For Drunk Drivers.”
Judges receive surprisingly little: John Irwin and Daniel Real, “Unconscious Influences on Judicial Decision-Making,” 8; Guthrie, Rachlinski, and Wistrich, “Inside the Judicial Mind,” 821–22; Henry T. Greely and Anthony D. Wagner, “Reference Guide on Scientific Evidence,” in Reference Manual on Scientific Evidence, 3rd ed. (Washington, DC: The National Academies Press, 2011), 747–812; Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 164–66.
But seeing the data could be: Educated about bias and equipped with personalized statistics, a judge could say to herself, I know that in 90 percent of the Fourth Amendment cases that have come before me, I have sided with the police, while my colleagues rule in favor of the police at a 60 percent rate. I’ve also learned that people often engage in a biased search for evidence that confirms what they already believe to be correct, but that consciously shifting your frame of analysis can act as a counterweight. Guthrie, Rachlinski, and Wistrich, “Inside the Judicial Mind,” 822. So, since my initial instinct was that the police were justified in their actions, I am going to now go back through the record with a different perspective: I am going to imagine that I hold the opposite instinct and see how much evidence I can find to support this conclusion. “The Mechanisms of Choice,” Observer 25, no. 1 (2012), http://www.psychologicalscience.org/index.php/publications/observer/2012/january-12/the-mechanics-of-choice.html.
A judge is always going to: Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 32–33.
But since they can also: Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 32–33. That may mean, in some cases, encouraging judges to take more time making critical decisions that are routinely decided on the fly, like the admissibility of evidence during trial. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 36. And, as we will discuss in the last chapter, it may imply a greater reliance on established protocols that guide the decisionmaking process on key issues and force a broadly focused deliberative process. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 35, 40–41.
Former New York supreme court judge: Jean Casarez, “Did Racial Bias Lead NYC Judge to Convict Man of Murder?” CNN.com, August 7, 2014, http://www.cnn.com/2014/08/06/justice/new-york-murder-conviction-revisited/.
Everything is stacked against it: “After Sending a Man to Prison, Judge Admits He Was Biased,” NPR, June 14, 2014, http://www.npr.org/2014/06/14/321952967/after-sending-a-man-to-prison-judge-admits-he-was-biased.
In October 1999, the defendant: Casarez, “Did Racial Bias.”
Kagan claimed that he had acted: Casarez, “Did Racial Bias.”
But Judge Barbaro convicted him: Casarez, “Did Racial Bias.”
Although it had been more than: Casarez, “Did Racial Bias.”
And when he pored over: “After Sending a Man to Prison”; James C. McKinley Jr., “Ex-Brooklyn Judge Seeks Reversal of His Verdict in 1999 Murder Case,” New York Times, December 12, 2013, http://www.nytimes.com/2013/12/13/nyregion/ex-brooklyn-judge-seeks-reversal-of-his-verdict-in-1999-murder-case.html.
He realized that his own background: “After Sending a Man to Prison.”
That frame had caused him: Casarez, “Did Racial Bias.”
Revisiting the facts, Wint now appeared: McKinley, “Ex-Brooklyn Judge Seeks Reversal.”
It seemed Kagan had shown: McKinley, “Ex-Brooklyn Judge Seeks Reversal.”
Wint’s friends had dragged: McKinley, “Ex-Brooklyn Judge Seeks Reversal.”
When Kagan pulled his gun: McKinley, “Ex-Brooklyn Judge Seeks Reversal.”
In the scuffle, the gun: McKinley, “Ex-Brooklyn Judge Seeks Reversal.”
In December 2013, fourteen years after: McKinley, “Ex-Brooklyn Judge Seeks Reversal.”
It is almost unheard of: McKinley, “Ex-Brooklyn Judge Seeks Reversal.”
And it took real courage: James C. McKinley Jr., “Prosecutor Questions Ex-Judge’s Memory,” New York Times, February 10, 2014, http://www.nytimes.com/2014/02/11/nyregion/prosecutor-tries-to-cast-doubt-on-ex-judge-seeking-reversal-of-his-own-verdict.html?module=Search&mabReward=relbias%3Ar%2C%7B%221%22%3A%22RI%3A6%22%7D.
But it seemed to Barbaro that: “After Sending a Man to Prison.” When asked by an interviewer whether there was room in the legal system for the doubt he was feeling, Barbaro remarked, “I think too many times there is pressure to finish the cases, get the cases done and off the calendar. This pressure dooms people to be convicted unjustly. Now I’m not saying every case, but one is too much.” “After Sending a Man to Prison.”
9. An Eye for an Eye ~ The Public
More than five hundred citizens: Jan Bondeson, The Feejee Mermaid and Other Essays in Natural and Unnatural History (Ithaca: Cornell University Press, 1999), 143.
They assembled around the town: Bondeson, The Feejee Mermaid and Other Essays, 143.
Earlier, the accused had been: Bondeson, The Feejee Mermaid and Other Essays, 143.
And though the child had: Joseph P. McNamara, “Curiosities of the Law: Animal Prisoner at the Bar,” Notre Dame Law 3, no. 30 (1927): 32; Bondeson, The Feejee Mermaid and Other Essays, 143.
Indeed, the guilt
y party had not: Bondeson, The Feejee Mermaid and Other Essays, 143.
The crowd watched with eager eyes: Bondeson, The Feejee Mermaid and Other Essays, 143.
She had been dressed in: McNamara, “Curiosities of the Law,” 32.
It was 1386: Bondeson, The Feejee Mermaid and Other Essays, 143.
But still, the condemned: Bondeson, The Feejee Mermaid and Other Essays, 143.
As the last preparations were made: Bondeson, The Feejee Mermaid and Other Essays, 143.
It was, the Vicomte must: Bondeson, The Feejee Mermaid and Other Essays, 143.
When, some three decades later: Bondeson, The Feejee Mermaid and Other Essays, 143.
Though the fresco has not: Bondeson, The Feejee Mermaid and Other Essays, 143.
She was a pig: Bondeson, The Feejee Mermaid and Other Essays, 143.
Trials and punishments of animals: Geoffrey P. Goodwin and Adam Benforado, “Judging the Goring Ox: Retribution Directed Toward Animals,” Cognitive Science (2014), 3-4, doi: 10.1111/cogs.12175.
Judicial proceedings were brought: Goodwin and Benforado, “Judging the Goring Ox,” 4; E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals (New York: E.P. Dutton and Company, 1906); Bondeson, The Feejee Mermaid and Other Essays, 131–60.
Mastiffs were guillotined: Bondeson, The Feejee Mermaid and Other Essays, 151.
Murderous bulls were seized: Evans, The Criminal Prosecution.
Horses were burned by court: Evans, The Criminal Prosecution, 162.
According to Plato: Plato, The Laws of Plato, trans. A. E. Taylor (London: J.M. Dent, 1934), 263–64.
The trial was to take place: Goodwin and Benforado, “Judging the Goring Ox,” 4; Walter Woodburn Hyde, “The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times,” The University of Pennsylvania Law Review 64, no. 7 (1916); Jen Girgen, “The Historical and Contemporary Prosecution and Punishment of Animals,” Animal Law 9 (2003).
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