Guest Commentary

Opinion: Discrimination Through The Judge's Lens

The Connecticut Law Tribune

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A single sentence from a new book by Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit recently created a firestorm around the Internet. In "Reflections on Judging," Posner wrote, "I plead guilty" to having authored the majority opinion in Crawford v. Marion County Election Board, which, in 2007, affirmed Indiana's voter identification law.

That decision became a basis upon which federal courts nationwide have upheld various photo voter ID laws, despite their clear disproportionate impact on voters of color, women, elderly and poor voters, and other vulnerable citizens.

Posner later clarified that this sentence wasn't a full-on recantation of his opinion but rather, that he, in light of new evidence demonstrating these laws' discriminatory impact, could not be confident that the decision was right, "since I am one of the judges who doesn't understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process."

Other judges—several of whom sit on the U.S. Supreme Court—have also offered mea culpas and surprising qualifications on decisions in equally monumental cases. In 1994, Justice Lewis Powell admitted that he was wrong to cast the deciding vote upholding the death sentence of Warren McCleskey, despite having been provided substantial empirical evidence demonstrating that race played a central role in the imposition of the death penalty against McCleskey in Georgia. As a New York Times editorial tartly commented at the time, Powell's admission was "too late for Warren McCleskey and numerous other executed prisoners." Similarly, 12 years after the fact, Justice Sandra Day O'Connor admitted that the Supreme Court was probably mistaken to hear Gore v. Bush in 2000 because "[i]t turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."

Although Posner has been criticized in some corners for his statement, many organizations working toward protecting the right to vote for all Americans have been dealing with the catastrophic results from the wave of suppressive voter ID laws that have been enacted—and are being challenged—around the country.

The truth is that judges make mistakes, and the good ones possess the self-awareness and humility to admit their shortcomings and to change their minds on occasion. But Posner's implication that it was the shortcomings of the attorneys' evidentiary presentation in the case that accounted for his decision tells only part of the story. Evidence available at that time demonstrating the likely suppressive effects of the Indiana ID law may not have been voluminous then, but it was certainly sufficient to support the claim that the ID requirements would likely fall hardest on indigent, elderly, rural or voters of color. Ultimately, the parties challenging Indiana's voter ID law were right: The suppressive—and subsequent—effect that voter ID laws would have on large swaths of voters is undeniable, and is now manifest in a number of states beyond Indiana.

Lawyers advancing discrimination claims are exquisitely aware that such cases are too often viewed by judges with skepticism. In other instances, judges simply lack the experience or background to fully understand the circumstances that might lead to or support a finding of discriminatory conduct. Justice Ruth Bader Ginsburg, a former employment discrimination lawyer, has felt compelled to offer several decision-day tutorials to her colleagues on the Supreme Court about the nature of employment discrimination—first in the Lilly Ledbetter case, and just a few months ago in a case in which the court narrowly construed the definition of "supervisor" for employment claims.

Without a doubt, lawyers advancing claims of discrimination should have to prove their case. But judges also should be aware of their own lack of experience and knowledge. Two years ago, a panel on the U.S. Court of Appeals for the 11th Circuit, remarkably, ruled that a white supervisor calling an adult black worker "boy" in Alabama had no racial significance. Embarrassing publicity ensued. Nearly a dozen black, male civil rights leaders, including former Ambassador and civil rights activist Andrew Young, filed a brief attesting to the racial implications of that term to convince the court to rehear the case and reverse the decision. Just this past June, in Shelby County, Ala. v. Holder, a five-justice majority of the Supreme Court decided that they were better positioned than Congress to determine whether racial discrimination in voting still justifies the coverage regime that existed under Section 4 of the Voting Rights Act. Not even 15,000 pages of evidence and testimony could convince the court that Congress got it right.

Of course, that's the thing about discrimination: Every one of us imagines we are an expert and—no matter how clearly removed we are from the lived realities of racial, sex, or other discrimination—we are too often unwilling or unable to defer to the substantiated experiences of those who stand directly vulnerable to discrimination in voting, housing, employment and countless other arenas. Civil rights claimants are experiencing the brunt of this fallout. The Supreme Court's 2010 decision requiring plaintiffs, upon filing a claim, to demonstrate to trial judges that their claims are "plausible" rather than just possible, falls disproportionately on groups and individuals fighting for civil rights. Because of the stigma associated with racism, we are all hard-wired to look for and accept every other plausible explanation for conduct before we conclude that racism is at issue. Plaintiffs raising these claims need discovery to find the kind of evidence—even circumstantial evidence—that will convince a court that the claim has validity. The Supreme Court has instead directed trial judges to "use their common sense and expertise" in deciding the plausibility of claim, although the range of both these qualities varies widely among different trial judges.

It's not as though the justices on the court think that judges know everything. Just this past term in a case raising the patent eligibility of DNA segments, Justice Antonin Scalia remarked in a one-paragraph concurrence, that with regard to the "fine details of molecular biology," he was "unable to affirm [the] … details on my own knowledge or even my own belief." Although most of us are more likely to have personal opinions on race than the intricacies of molecular biology, race and race discrimination are not simply matters of feelings, or even beliefs. Proving stark and quantifiable racial disparities in punitive outcomes, racially polarized voting, intentional racial discrimination in the workplace, and even scientifically-proven implicit bias, have required the exhaustive work of historians, social scientists, labor economists, political scientists, and even neurologists.

After the death of Justice Thurgood Marshall, his colleague Justice Byron White described the contribution of the nation's first black justice to the conference of the justices this way: "Marshall told us what we didn't know and what we didn't want to hear." Posner's admirably candid admission should serve as a reminder to judges that self-awareness about their own limitations is part of judging, too.•

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