Wall Street Journal Praises Judicial Ignorance of Statistical Methods

From yesterday's Wall Street Journal editorial page covering yesterday's oral arguments in Gill v. Whitford, a case that involved a challenge to alleged gerrymandering:

[Chief Justice John Roberts] zeroed in on risks for the credibility of the judiciary if the Supreme Court invalidates a state electoral map on purely political grounds for the first time. His reference to EG is to a political science standard offered by the plaintiffs as a test of when an electoral map is too partisan.

. . .

Chief Justice: “It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG was greater than 7%. That doesn’t sound like language in the Constitution.” . . .

[Plaintiffs' Attorney, Paul] Smith: “If you let this go, if you say this is—we’re not going to have a judicial remedy for this problem, in 2020, you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.

And it may be that you can protect the Court from seeming political, but the country is going to lose faith in democracy big time because voters are going to be like—everywhere are going to be like the voters in Wisconsin and, no, it really doesn’t matter whether I vote.”

Chief Justice: “No, but you’re going to take this—the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.”

Gerrymanders are unsightly, but worse would be the sight of federal judges becoming political arbiters of every electoral map based on evidence that voters are likely to conclude is itself partisan.

An eye-opening Twitter thread by Steven Mazie illustrating how Chief Justice Roberts and Justice Gorsuch appeared to lack knowledge of the statistical methodology involved paints Chief Justice Roberts' comment as more disturbing than the quippy Editorial Board lets on. While "gobbledygook" is a fun word, reminiscent of "argle bargle" and "pure applesauce" of old, the implications of the comment are that the Court -- the last resort for challenging (often-complex) gerrymandering schemes -- should decline to do so because the methods involved are too complicated and potentially subject to partisan manipulation. Jesse Wegman at the New York Times' editorial page covers Smith's response, which summarizes this problem:

“The problem in this area is if you don’t do it, it is locked up,” Mr. Smith said. “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse.”

Gerrymanders are more than "unsightly" as the Journal describes. The contorted and bizarre-looking voting districts that gerrymandering creates may result in disenfranchisement of voters along party and racial lines. They threaten representative democracy. The Journal's and Chief Justice's implication that a lack of understanding of statistical methods is enough of a barrier to let this threat go unchallenged is concerning.

Criminal Records and Reentry, and the Importance of Civil Reform

Via the CrimProf Blog, I learned about a recent article by Michael Pinard entitled, Criminal Records, Race and Redemption. The citation is 16 N.Y.U. J. L. & Pub. Pol. 963 (2013).  Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

I have not had very much time to read through the paper in depth, but from what I have read, Pinard seems to be presenting and addressing an extremely important issue facing the criminal justice system. Speaking from my own experience volunteering at a reentry clinic for a few years, I can say that (1) Pinard's arguments that criminal records make finding jobs and housing difficult are spot on, and (2) that I am relieved to be working at a clinic in California rather than Maryland, where expungement rules seem to be far more restricted.

Pinard also seems to offer some strong suggestions for reform. I would add to his conclusions by re-emphasizing the importance of civil remedies against employers who discriminate based on criminal background. I am aware that California has enacted legislation that provides for statutory damages in the event an individual can prove that they were not hired specifically because of their criminal background. And while Pinard correctly points out that this may be difficult to prove, I have nevertheless met numerous people who have heard either explicitly from employers that they were not hired because of their record -- or who had significant circumstantial evidence that this was the case. Legislation providing for substantial statutory damages would provide employees with record with a significant source for redress in the event they are not hired because of their criminal record.

Same-Sex Marriage, Child Custody, and the Miller Perspective

This week in my Conflict of Laws course we arrived at the subject of interstate disputes over judgments in child custody cases.  This led us to the case(s) of Miller v. Jenkins (or, as our book listed it, Janet Miller-Jenkins v. Lisa Miller-Jenkins).  A good summary of the case from the New York Times is available here, but here is my attempt to lay out the facts in as brief a manner as I can.

The Miller v. Jenkins series of cases arose from a string of complicated facts.  Lisa Miller and Janet Jenkins entered into a civil union in Vermont in 2000.  Lisa gave birth through artificial insemination during this union, but eventually filed a petition for dissolution of the union in 2003.  The Vermont court released a temporary order granting Lisa custody of the child, Isabella, and giving Janet visitation rights.

This is where things got chaotic.

Lisa went to Virginia and sought a court order that she be declared the sole parent of Isabella.  Before the Virginia court released its order, the Vermont court issued a ruling reaffirming its jurisdiction.  Nevertheless, the Virginia court declared that Lisa was Isabella's sole parent and that Janet had no rights of visitation.  The Vermont court then held Lisa in contempt for failing to allow Janet to visit Isabella in violation of the court's custody order.

Litigation ensued, and the courts ultimately decided that the Virginia trial court's decision had violated the Parental Kidnapping Prevention Act (28 U.S.C. 1738A).  Despite this outcome, Lisa continued to refuse Janet's visitation requests and was again held in contempt for violating the Vermont trial court's order.  Each time she was held in contempt, Lisa would appeal the ruling.  Eventually, the Vermont court ordered that Janet be given sole custody of Isabella.

Lisa took Isabella and, with the aid of various religious organizations, fled to Ontario.  From there they flew to El Salvador and ultimately to Nicaragua.  Timothy Miller (no relation to Lisa) was a missionary who flew with Lisa and Isabella to Nicaragua and was later arrested for aiding and abetting kidnapping.  Kenneth Miller, a pastor (also no relation to Lisa), was also involved in the scheme.  He helped purchase clothing to disguise Lisa and Isabella as Mennonites, secured their travel plans, and was ultimately arrested and convicted for aiding and abetting the kidnapping, and sentenced to 27 months in prison.

Lisa and Isabella have not yet been located.

The casebook that presented this case told the story of the case's aftermath in the notes, and noted that it seemed strange that conservative religious organizations helped Lisa as much as they did.  Lisa, after all, had been in a same sex union, which Kenneth and Timothy Miller would have considered an afront to their beliefs.

News coverage of the story provides some insight into the full state of affairs.  Additionally, the pastors and organizations involved in Lisa's flight have blogged extensively on their points of view, and this provides a dimension of the story that seemed lacking in the cases, casebook, and media coverage.  Because this angle of the story investigates Lisa Miller's circumstances (and involves an oddly large number of people named "Miller"), I call it the "Miller Perspective."

Schraub on Sticky Slopes

This is the title of an interesting article by David Schraub in the latest issue of the California Law Review.  It does not seem to be available on the journal's website, but here is a link to the paper on SSRN.  Here is the abstract:

Legal literature is replete with references to the infamous “slippery slope” — situations in which a shift in policy lubricates the path towards further, perhaps more controversial, reforms or measures. Less discussed is the idea of a “sticky slope.” Sticky slopes manifest when a social movement victory acts to block instead of enable further policy goals. Instead of greasing the slope down, they effectively make it “stickier.” Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion with grappling against the problem of inequality to seemingly little effect.

I argue that attentiveness to sticky slopes is important for three reasons. First, awareness of the prospect of a sticky slope can be important in long-term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision. Third, sticky slopes reveal how prior victories are themselves sites of social conflict and controversy over meaning, which social movements will want to turn to their preferred ends.

(H/T: Whoever left the most recent issue of the California Law Review on the table in the UCLA Law Review Office)

UPDATE

Here is the link to the article on the California Law Review's website.

Introduction: Interest Convergence and the Limits of Law Enforcement: Developments, Prospects, and Distractions

In a New York Times Op Ed released yesterday, Professors Devon Carbado, Kimberlé Crenshaw, and Cheryl Harris reacted to Judge Scheindlin's opinion that the New York City Police Department's "Stop-and-Frisk" policy violated the Fourth and Fourteenth Amendments.  (That opinion is available in two parts: here and here).

Carbado, Crenshaw, and Harris focus on how this decision makes little difference to the status quo where the Supreme Court's approach to the Fourth Amendment permits police officers' use of race as a factor in stopping, frisking, and pulling over African-Americans and Latinos.  The government's law enforcement power remains characterized by the vast discretion afforded to officers.

This article is a very good primer on police discretion under existing Fourth Amendment law.  It effectively outlines the various parts of police searches and seizures and does so in a very approachable manner.  The article does not explore how these problems can be solved.  This is not surprising because virtually all of the practices the article discusses have been upheld by the United States Supreme Court.  This means that short of legislative action or systemic changes to police enforcement policies, changes to the status quo face a very difficult uphill battle.

My next project will be to argue that there may be a solution within reach.  Drawing on Derrick Bell's theory of interest convergence, I will outline how recent developments in the Supreme Court's Fourth Amendment jurisprudence indicate that the Court may be willing to give new force to this often-neglected safeguard.  I will then note that current discussions of government surveillance practices and the executive's use of lethal force present an excellent opportunity for a paradigm shift in Fourth Amendment law.  Finally, I warn against potential distractions that may undermine the coalition of interests that the current political climate can foster.

My hope is to have this written and sent out by the end of the current law review slating cycle.  At the same time, I will plan to write a number of posts that correspond to the various parts of the essay I will be writing in order to summarize and outline the arguments I intend to make.  This post is dedicated to the introduction, a more developed version of which appears after the jump.

Redemption for Iowa’s Supreme Court?

In the midst of the uproar surrounding the Supreme Court’s recent decisions, I nearly missed the news that a different Supreme Court is taking action that is worthy of some attention.  Via How Appealing, I learned of Ryan Koopmans’s post at On Brief.

When the California Supreme Court and Ninth Circuit affirmed the decision of the Northern District Court of California that Proposition 8 was unconstitutional, I was not as vocal in celebration as some of my classmates who were natives of California.  I had just come from Iowa, so I was already used to gay marriage being legal (I had a similar experience with the fierce debate surrounding the failed attempt to eliminate California’s death penalty).  By the metrics of most of my friends, Iowa was ahead of California in a number of important respects – and I made sure to constantly remind them of this fact.

My enthusiasm in Iowa’s progress was dampened, however, by the tendency of the state to take steps backward as soon as it had moved forward.  The legalization of gay marriage was met with the expulsion of three of Iowa’s Supreme Court Justices during their retention election.  But in an action that went beyond popular backlash, the Iowa Supreme Court proceeded to tarnish its own reputation in the case of Nelson v. James H. Knight, DDS, P.C.

In Nelson, the Iowa Supreme Court held that it is not a violation of the Iowa Civil Rights Act to fire an employee because the employer feels personally attracted to the employee.  Even if the employee would not be fired but for his or her gender, there is a difference between sex-based termination and termination based on a personal attraction.  While I am no expert on the Iowa Civil Rights Act, the decision raised some red flags to me because it seemed to put employees’ security at the whim of employers’ sexual desires.  Furthermore, employers could claim a personal attraction as a false justification for firing employees on the basis of sex and it is not clear how the employee would be able to disprove the claim of attraction.

This decision made national news and was met with wide ridicule, even all the way out here at UCLA Law.  My Iowan ancestry, once my claim to fame, became a source of shame.  It is because of all of this that I am happy to see that the court has agreed to rehear the case.  I hope that the Iowa Supreme Court decides the case differently so that I can once again belittle my Californian friends by asserting Iowa’s jurisprudential superiority.