Archive for April 2012
In my blog post last week I looked at the way in which serving on a trial jury is associated with a strong perception that trial courts decide cases in a procedurally fair manner. Former jurors report coming away from jury service holding a higher level of trust and confidence in the courts than they had beforehand.
Can we identify other court experiences that are associated with strong perceptions of experiencing procedural fairness? Available research points to problem solving courts as the most promising candidate. Defendants in drug treatment courts (DTC) report experiencing higher levels of procedural fairness than do comparable groups of defendants processed on the same kinds of charges through traditional criminal courts. The available research identifies that the relative advantage in defendant perceptions of procedural fairness is a key, and perhaps the primary, reason why drug court defendants have lower recidivism rates than their counterparts in traditional courts. One relevant study is a DTC evaluation conducted by prominent criminologist Denise Gottfredson in the criminal courts of Baltimore, Maryland. Drug treatment court-eligible defendants were randomly assigned either to the DTC or to the traditional court. DTC defendants were less likely to re-offend: “More specifically, [the study] suggests that the DTC program, especially the judicial hearings, contributes to an offender’s perception of fairness and due process, thereby increasing his or her willingness to fulfill his or her part of the negotiated DTC agreement.” (Source: D. Gottfredson et al., How drug treatment courts work: an analysis of mediators, Journal of Research in Crime and Delinquency, 2007, p. 28).
The recently concluded Multi-Site Adult Drug Court Evaluation supports the explanation for the lower recidivism rate associated with DTCs put forward by Gottfredson and her colleagues. Although labeled”attitude to the judge,” and associated by the report writers with the field of “Therapeutic Jurisprudence,” the scale is based on DTCs’ perceptions of the “judges competence, impartiality and concern for their [defendants] general well-being.” The report concludes that “the most striking finding in this research is the power of the judge, and judicial interactions with the offenders, to promote desistance.” (Source: Chapter 6, by John Roman et al., “How do Drug Courts Work?”, pp. 94-120). That sounds like a procedural fairness effect.
These findings from research on drug courts appear to be generalizable to at least some of the other types of problem-solving courts. Research conducted by the Center for Court Innovation in community courts and in housing courts also finds that specialized problem-solving courts are viewed as more procedurally fair by litigants than are traditional court dockets that process similar cases. Thus far, however, only drug treatment courts provide solid evidence that there is a direct link between enhanced perceptions of procedural fairness and a reduction in recidivism and greater compliance with court orders.
Generally, however, the impact of direct experience with the courts is more hit or miss for civil litigants and criminal defendants. In fact, the bulk of research suggests that court experience is as likely to diminish as it is to increase trust and confidence in the courts. The available research shows that procedural fairness is least likely to be perceived in high volume courts, with defendants in traffic court, on average, reporting the lowest levels of procedural fairness and of trust and confidence in the courts. (See, for example: D. Rottman, Trust and Confidence in the California Courts: Findings and Recommendations, Judicial Council of California, 2005)
My next blog post will consider what lessons we can draw from the evidence available on what is conducive to high and what to low levels of perceived procedural fairness.
This posting begins a transition from the recent series of blogs and comments pertaining to the rarified world of the US Supreme Court toward consideration of the more mundane and immediate setting of state trial courts. This post raises the question of how what we know about the sources of support for the Court is relevant when we consider support for trial courts. The answer depends, in part, on what we believe drives public support for the Court—and perhaps on the reason that brings a person into the courthouse.
Some political scientists argue that it is the very inaccessibility of the US Supreme Court that underpins its support. For example, Political scientists John Hibbings and Elizabeth Theiss-Morse argue: “The Court is more insular than any other political institution, and people like it for that very reason. People do not have to participate in or even see the deliberations of the Court” (pp. 200-201 in Stealth Democracy: Americans’ Beliefs about How Government Should Work). This suggests the Court is wise to prohibit televising of oral argument and, perhaps, that trial courts are doomed to low levels of support.
Other political scientists, however, highlight the role that knowledge of the Court plays in understanding why support varies among members of the public. Studies by Jim Gibson and his colleagues, for example, lead to a conclusion that there is a “to know them is to love them” effect in which the more knowledgeable someone is about the US Supreme Court, the higher their level of support will be (see James Gibson, “Public Images and Understandings of Courts” in Oxford Handbook of Empirical Legal Research, 2010). Gibson asserts that the this effect “is largely a function of the knowledgeable being exposed to highly legitimizing symbols of judicial power: the black robe, the privileged form of address, the deference, even the temple-like building housing most courts.” This suggests that the Court should open up oral argument to the public, and that being involved directly in a case may well enhance a person’s support for trial courts by increasing their level of knowledge.
A majority of American adults have had direct experience in a courtroom as a litigant, defendant, juror, witness, or spectator. Many of them have had multiple experiences with the trial courts, in multiple roles. They see the symbols in the temple-like building but also see the crowded dockets, delays, contentiousness, and compromises of the courts in action.
For at least some of these court participants, a link of the kind described by Gibson between greater knowledge and greater support seems plausible. Jurors are the best example. Former jurors consistently rate procedural fairness in trial courts highly. In a 2000 national survey of members of the public who had had direct court experience within the preceding 12 months, former jurors averaged procedural fairness ratings of 3.6 out of a possible 4.0; this contrasts with former litigants, who averaged 2.7 out of 4.0 (David Rottman et al., Perceptions of the Courts in Your Community: The Influence of Experience, Race and Ethnicity, NCSC, 2003).
A recent book, The Jury and Democracy (Oxford University Press, 2010), by John Gastil and colleagues, reports research that supports a knowledge to support link and also explores the potential impact of the experience of jury deliberation on jurors’ future civic and political engagement. The book is a product and discussion of three related studies conducted by the authors: a national sample of jury service and voting records, a three-stage survey of jurors in King County, Washington, and a smaller series of in-depth interviews with jurors. The book begins with a basic, but perhaps surprising, finding – that the experience of deliberating on a criminal jury causes jurors to become more likely to vote in future elections – the book then explores why the experience of serving on a jury has this effect. Ultimately, Gastil and his colleagues find that jurors leave the courtroom with increased respect for attorneys and judges, become more likely to pay attention to the news media and discuss community issues with neighbors, and more likely to be supportive of the jury system, local judges, and even the Supreme Court.
A future blog posting will look at the implications of how jurors respond to court experience—and the contrast to those who are in the courthouse for other purposes–for programs to increase support for the state courts.
There is intense speculation about the potential impact of the Affordable Health Care Act on the US Supreme Court’s standing with the American public. Decades of public opinion polling demonstrates the resiliency of the Court in withstanding case decisions that seriously displease large segments of the public. The Court appears to command the loyalty of the American people because of the manner in which it reaches decisions, not the specific decisions it reaches.
Will history repeat itself in the case of the Health Care Act? There are strong reasons for anticipating that the public’s loyalty to the Supreme Court as an institution will prevail, regardless of the case outcome. The partisan tumult associated with Bush v. Gore seemed at first to challenge such an expectation, yet after that case, overall support for the Court quickly reverted to its traditionally high (relative to other federal government institutions) level. In the short term, disenchanted Democratic-leaning Court supporters were instantly replaced with newly enchanted Republican-leaning Court supporters, leaving overall levels of support unchanged; however, even that effect was short-lived. One month after the decision, over 61 percent of Democrats professed a favorable opinion of the Court and only 29 percent an unfavorable opinion [Pew Research Center]. Support for the Court once again became equally prevalent among Democrats and Republicans alike.
Today’s Supreme Court justices may have reason for concern that history will not repeat itself and that their decision in the Health Care Act case could reduce diffuse support their institution receives from Democrats (and less certainly from Republicans, who already view the Court as too liberal, if the decision goes in the other direction). “Diffuse support” is a reservoir of good will on which the Court can draw, as opposed to the temporary “specific support” that it might receive based on agreement with a particular decisions. In procedural fairness terms, diffuse support comes from public perceptions that decisions are being made according to principles of respect, neutrality, participation, and trustworthiness. Things may have changed since 2000. The Court is increasingly being seen in partisan terms. A Washington Post-ABC News survey last Sunday asked a random sample of adults, “Do you think the Supreme Court justices will rule on this case mainly on the basis of the law or mainly on the basis of their partisan political views. Forty percent answered “on the basis of the law” and 50 percent based on “partisan political views,” with another 10 percent undecided. Those responses come at a time in which support for the US Supreme Court has been declining, most likely a manifestation of a general decline of trust in government across the board. The past may therefore be a less certain guide to the consequences of a decision viewed unfavorably by a substantial segment of the public, especially if Democrats see the decision as part of a series of specific disappointments with the Court. Support for the Court cannot in the long-run rest on new supporters from one party replacing former supporters from the other.
We have no way of predicting whether successive disappointments with specific Court decisions will lead to a decline in its diffuse support among a segment of the population. The historic relationship between the Court and African-Americans suggests, however, that groups who are dependable supporters can become persistent critics. Over time, the high level of support the Court enjoyed from the African-American community during the period of the Warren Court was replaced by atypically low levels of diffuse support. While African-Americans who grew up during the Warren Court era retained their loyalty, subsequent cohorts never developed a similar level of diffuse support. Bush v Gore also teaches us that one effect of the Health Care Act will be to at least modestly increase public knowledge about how the Supreme Court operates. People will talk about and think about the manner in which the Court is making its decision. This is both an opportunity and a risk to the justices. If what people learn and come to believe from news reinforces the belief that the Court follows a procedurally fair process, diffuse support for the institution will be enhanced. As Judges Burke and Leben noted in previous posts to this blog, the Court is taking some steps to expose its process to unprecedented scrutiny. That should be a plus. But the risk is real. In his analysis of the response to Bush v. Gore, political scientist Bert Kritzer noted that the Courts refusal to allow television cameras into oral argument may have served “to limit the vehemence of the public reaction to what the Court decides.”
On balance, the smart bet is on the Supreme Court’s continued ability to maintain diffuse support across the political spectrum. However, demonstrating procedural fairness in the decision and how it is presented will increase the odds of history repeating itself in June 2012 when the decision is announced
Two recent procedural fairness blogs try to identify workable criteria of procedural fairness in appellate courts and especially during oral arguments. The bloggers rightly point out the importance of how judges conduct the proceedings and emphasize the importance of civility in questioning both sides and letting both sides address the court..
However, isn’t the acid test that attorneys or pro se litigants apply whether the judges understand the issues in the case? If so, isn’t a pertinent and operational criterion that the judges know the facts? Presumably, U.S. Supreme Court Associate Justice Antonin Scalia flunked this test when he brought up the Cornhusker Kickback in the recent argument over the Affordable Health Care Act. His behavior suggested an incomplete and incorrect understanding of the provisions of the law under review.
A related test concerns what the judges say about the briefs in a case. If so, isn’t it also pertinent and feasible to assess appellate judges by expecting them to address the dispositive issues submitted in the briefs raised by counsel or pro se litigants? Certainly judges are entitled to ask other questions that they believe revolve around what they think are the dispositive issues. However, in the American appellate system where premium value is placed on the briefs, shouldn’t oral argument recognize this established value?
One more test might focus on the authorities raised in the briefs. If so, isn’t it feasible and relevant to assess whether the most eminent previous court decisions cited by counsel or pro se litigants received some recognition? Yes, judges can easily make new law, but they operate in a legal system where past authority counts. And in the recent Affordable Health Care Act oral argument, I didn’t hear a lot of discussion about previous and relevant U.S. Court of Appeals decisions. That omission was striking to me as an observer.
It seems to me that additional tests are possible that concern the judges understanding of the issues.Those tests are worthy of future research and legal analysis, in my opinion.
Roger Hanson lives in Denver and is engaged in legal research for the purposes of legal reform. He assisted the Right Honourable the Lord Woolf in his report of civil justice in England and Wales and has worked in Afghanistan and the Philippines in addition to American state and federal appellate courts. He always roots for the Kansas Jayhawks.
In our last blog post, we said that the public attitudes about the judicial system at all levels could be significantly impacted by how well the justices of the United States Supreme Court adhered during oral argument to the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. So how did the justices do? It’s an important question: This case has the potential to increase the sense of legitimacy in judicial decisionmaking, and it also has the potential to be a train wreck. Despite the importance of oral arguments, whether one of those two extremes will occur will be very dependent upon the final written opinion. But the oral arguments certainly set the stage for how people will view the process by which this case is decided.
On the whole, the justices performed reasonably well during oral arguments. Most asked good questions that seemed to be honest attempts to explore the strengths and weaknesses of each party’s positions. And this was certainly the case for the two justices whose role in the oral arguments probably mattered the most in public perception: Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy—Roberts because as chief justice he runs the show, and Kennedy because he is widely seen as the swing justice these days when the court is closely divided.
Both Chief Justice Roberts and Justice Kennedy asked questions of attorneys both for and against the Affordable Care Act. And both tried to explore the issues in an even-handed way. For example, while Roberts asked tough questions of the government’s lawyer regarding the individual mandate, he also interrupted one of the attorneys arguing the other side to have him respond to what Roberts perceived as the government’s main point. Kennedy openly discussed “concerns” he had regarding each side’s position. To opponents of the law, Kennedy asked that they address his “concern in the case” that the young person who chooses to be uninsured is “very close to affecting” insurance rates for others “in a way that is not true in other industries.” Kennedy also asked detailed questions of the government, which based part of its defense on the principle that the government had exercised its taxing power as authority for the mandate for each individual to buy health insurance. Kennedy asked them to assume that the government indeed could have used its taxing power and directly created a single-payer national health plan. He then said that “it can be argued that this is what the government is doing; [the government] ought to be honest about the power it’s using and use the correct power,” to which the government’s attorney provided a response.
Chief Justice Roberts acted evenhandedly in presiding over the arguments. Although the justices and frequent court-watchers may be used to it, the public was no doubt surprised by how often justices interrupted one another—and also interrupted attorneys while the attorney was still responding to another justice’s question. Roberts frequently asked attorneys to return to the question that had initially been asked by another justice but not fully answered, ensuring that the advocates had a fair chance to respond to the important questions that the justices had posed to them. From a fairness standpoint, however, it would be much better if justices didn’t interrupt each other so frequently, and if they allowed attorneys to finish their answers to other justices’ questions.
Media accounts of the arguments have tended to focus on attempts to predict the outcome based upon questions asked or attitudes exhibited during oral argument. Arguments from judges who have carefully studied the briefs often will produce some questions that express tentative positions, which is to be expected. While that may be the case, most of the questions still were usually fair ones that gave the attorneys a chance to respond to what the justices saw as weaknesses in their positions. Appellate advocates appreciate having the chance to address the points that are on the minds of the justices, and the justices generally gave them that chance.
Experienced lawyers—and judges—will tell you to be cautious about reading too much into a judge’s questions and comments during oral argument. Sometimes a judge will ask questions to confirm a tentative position the judge has arrived at based on the briefs. Sometimes a judge is aware of concerns a colleague has and will use the oral argument to garner support for a majority opinion. Sometimes a judge really has reached an immovable position. Two respected federal appellate judges once kept track—for 10 months—of how often oral argument had changed their minds in a case; one judge said it had 31 percent of the time and the other 17 percent. The confidence of pundits notwithstanding, it’s not always possible to tell how a case will come out based on the oral argument.
Only one justice simply seemed tone-deaf at times to the principles of procedural fairness: Justice Antonin Scalia. From a fairness standpoint, the public wants to perceive that the justices are considering the issues based on neutral legal principles, not in any political way. Yet Justice Scalia was the only one to introduce partisan politics directly into the discussion.
During the argument about whether the Medicaid provisions were unconstitutionally coercive on the states, attorney Paul D. Clement was explaining that 26 states thought it was a bad deal for them. Scalia interrupted and framed the issue as a purely political one: “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance that all 26 States opposing it have Republican governors, and all of the States supporting it have Democratic governors? Is that possible?” Clement replied, “There’s a correlation, Justice Scalia.” The transcript shows that Scalia then said, “Yes,” followed by laughter from the audience. Scalia left it there, and another justice asked an unrelated question.
No one—Scalia, Clement, or anyone else—suggested how the party affiliation of the governors could relate to the legal issue being discussed. As far as we can tell, Scalia injected partisan politics directly into the discussion at this point solely to lead to a laugh line. Humor does have a place in arguments before judges. But a judge interjecting humor should be careful. Justice Scalia’s laugh line may well have come at a cost, as it undermined what we presume is the court’s desired perception that it decides case like this based on neutral legal principles, without consideration of partisan political overtones.
Justice Scalia made at least one other potentially questionable comment. In an argument of this length, people—and justices are people—do make mistakes, but this mistake was profound and went to undermining the trust people need to have about judges. When discussing whether the entire law should be struck down if the court strikes down the individual mandate, Justice Scalia made a perjorative reference to a provision that was contained in the Affordable Care Act but ultimately did not become law: “[I]f we struck down nothing in this legislation but the—what’s it called, the Cornhusker kickback . . . [i]t was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.” Using the term “kickback” in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask. It’s odd that Justice Scalia would ask such a question because his consistent position is that in interpreting statutes, legislative-history materials (like Congressional debate transcripts) should not be consulted, let alone the sort of media coverage that led to public discussion of the Nebraska provision. And while the provision Scalia refers to as the “Cornhusker kickback” was in the Affordable Care Act, another bill repealed it before it took effect. So the use of this example seems gratuitously partisan, even if that was not the intention.
Justice Scalia made one other comment that runs contrary to the image the public wants for its Supreme Court justices, and once again he ran aground by attempting to inject humor into the proceedings. When the attorneys were arguing about whether some of the provisions of the Affordable Care Act could remain in effect if the individual-mandate provision is struck down, Scalia invoked the Eighth Amendment’s prohibition on cruel and unusual punishment while expressing astonishment that the attorney had suggested justices review the full statute to determine what could remain in effect: “[W]hat happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” The transcript shows laughter in response. But Scalia ended the exchange with a more serious suggestion that it really was unfair to ask a Supreme Court justice to read the Affordable Care Act in full: “Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?”
Other justices suggested that such a review wasn’t needed, anyway, based on the nuances of past Supreme Court cases on how to decide whether to strike down an entire statute or only parts of it. But a member of the public listening to the argument could easily have been left with the impression that Justice Scalia—a lifetime appointee to the nation’s highest court—wasn’t willing to take the time to read the full statute passed by Congress to make his decision. The public wants judges who will take all the time needed to make a good decision on an important issue, and the public certainly regards the issues in play here as important ones.
It’s too early to fully evaluate the court’s handling of these cases from a procedural-fairness standpoint. The written opinion or opinions of the justices are likely to have a much more profound impact on how the American people view judicial decisionmaking than the oral arguments. Ideally, the opinion would be joined by more than five justices, which itself would suggest that the justices reached consensus on neutral principles that transcend party affiliation. But whatever the vote margin, opinions that honestly acknowledge the sincerity of opposing views while carefully explaining the basis for the decision (or dissent) will help the nation to respect the judicial process. Anything less could cause lasting damage.
Steve Leben and Kevin Burke