Archive for the ‘Courts’ Category

The Healthcare Decision: First Reaction   3 comments

Although we’ve emphasized that it takes time to assess the public’s reaction to a Supreme Court decision—and the effect of that reaction on the public’s goodwill toward the Court—blogs operate in the here and now. So we venture forth with some initial, tentative thoughts.

If opinion polls are a reliable indicator, the public may be disappointed in the outcome of the case—a New York Times/CBS News poll showed that 41% wanted the law struck down altogether and another 27% wanted the individual mandate struck down while keeping the rest. But the Court has had many opinions over the years that have gone against the trend in current public opinion, and in the past that hasn’t caused any lasting damage to the Court’s overall support from the public. In fact, one of the features of the Supreme Court in the past has been its ability to make unpopular decisions without losing public legitimacy, at least in part because the Court has been widely viewed as above politics.

We had expressed concern that this might change if the public perceived the Court had merely acted politically in handling the healthcare cases. Indeed, a Washington Post/ABC News poll showed that 50% thought the Court would rule based on “partisan political views.” So the public was initially skeptical about the fairness of the process.

What does today’s opinion tell the public about the fairness of the process the justices followed in reaching their decision? The initial news coverage has predictably focused on two aspects of the Court’s decision: (1) the outcome upholding the Affordable Care Act and (2) that the majority opinion was written by Chief Justice John G. Roberts, Jr. Indeed, in the big-picture view, which is where public opinion is formed, those are key points. And that means that the Chief Justice—the justice whose very role makes him the face of the Court—will be perceived by many as having decided the case on something other than “partisan political views.” That could certainly reinforce the historic public vision of the Court as an institution that places adherence to the rule of law above politics. In addition, whenever anyone paints the Court in partisan terms, members of the public may think back to the Chief Justice’s key vote in upholding the Affordable Care Act and conclude that the Roberts Court is not simply a political institution making decisions based on policy preferences rather than on the law and evidence.

The Court’s decision confirms our previously expressed view that the Chief Justice indeed had an open mind during oral argument, and that his questions were fair ones to be asked of both sides. In these days of pundits, many commented publicly that it was nearly a foregone conclusion that the Court would find the entire statute unconstitutional—based on what was observed at oral argument. Perhaps this high-profile example that such guesses can be wrong will also be helpful; the public may realize that oral arguments are part of the process of learning about and exploring the issues, not deciding them. An open process in which issues are explored, parties’ positions are better understood, and the Court then retires to consider everything it has heard, fulfills public expectations for procedural fairness.

We’ve only looked briefly at the written opinions at this point. The justices receive mixed grades in terms of being respectful, but—at least in their introductions and conclusions—they have tried to explain basic concepts involving the exercise of government power under the Constitution. But news-media commentary is likely to give prominence to those instances where one or more of the justices indulged in sarcasm and belittled the other side of the decision.

That leads us to wonder whether the justices might yet benefit greatly by writing more for a lay audience than for each other or for constitutional law scholars. When he wrote the draft opinion for Brown v. Board of Education, Chief Justice Earl Warren set out to write an opinion so short that it would be reprinted by newspapers and read by the public. Warren’s memo to his fellow justices accompanying the draft told his colleagues that the draft had been “prepared on the theory that the opinion[] should be short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.” He wanted to make sure that the opinion would be understood and accepted by the public.

Perhaps the Affordable Care Act has so many more moving parts than the concept of segregated schools had that it was necessary for the justices to issue opinions totaling 193 pages to decide the case and explain the decision. Even so, we know that public interest in the healthcare cases was high, and many more citizens would have read the opinion—and gained further appreciation for the Court—had the justices written shorter opinions more tailored toward a lay audience. Chief Justice Warren’s opinion in Brown, which took up only 14 pages in the United States Reports (including the syllabus prepared by the reporter to summarize the opinion) may remain a model of succinctness and clarity that modern courts simply do not approach.

In sum, the combination of a well-publicized oral argument that was fairly handled and allowed issues to be explored and a ruling in which the most prominent justice went against partisan stereotyping may augur well for long-term public support for the Court. Time—and future events—will tell.

Steve Leben, Kevin Burke, David Rottman & Tom Tyler

The Healthcare Ruling: The Public Stands Ready to Judge the Judges   Leave a comment

So we will need to wait until Thursday for the Supreme Court’s decision on the Affordable Care Act. Interest runs high. Today, nearly 100,000 people signed on to a live blog from Scotusblog.com to see whether the Court had ruled on the healthcare case and, if so, in what way.

We previously considered the healthcare cases from a procedural-fairness viewpoint. We gave the Court a passing grade for procedural fairness at oral argument: the two justices most closely watched, Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy, asked questions of attorneys both for and against the law, and each tried to explore the issues in an even-handed way. (See our April 3 blog entry.) We also noted that diffuse, long-term support for the Court has usually stood resilient in the face of short-term disagreements over specific cases. (See our April 13 blog entry.)

But there are also reasons for concern—that the Court’s decision in the healthcare cases may prove particularly significant in their impact on long-term public support for the Court as an institution. Gallup checks public approval of the Court before each September, just before the Court begins its new term. Approval in 2011 was down to 46%, down 15% in two years and lower than all but one other reading since 1973. At the same time (Sept. 2011), Gallup reported historically high levels of negativity toward all of the federal government, with 81% dissatisfied, an historic level.

One important factor in maintaining public support for the Court is the public’s perception that their concerns and interests are fairly considered there. But that’s not the expectation as we await the healthcare decision. A Washington Post-ABC News survey in April showed that 50% thought the Court would rule based on “partisan political views,” with only 40% saying it would rule “on the basis of the law” and the remaining 10% undecided.

Public reaction to two past decisions offers some insight into the likely impact of next Thursday’s ruling on public opinion; they suggest caution against over-reading any immediate reaction in public opinion to the healthcare decisions. The first is Kelo v. City of New London, the Court’s 2005 eminent-domain decision. It was coincidentally issued one day before Gallup began a three-day opinion survey about Court approval, and the 42% approval rating (compared to 48% disapproving) is the lowest measurement for Court approval during the history of the poll (1973 to present). But the Court’s approval quickly rebounded—to 48% by the annual survey in September 2005 and back to 60% a year later. The second is Bush v. Gore, the 2000 decision that had obvious political overtones. But the Court’s approval ratings were 62% in September 2000, 59% in January 2001, and 62% in June 2001, showing no ill effects on overall public approval.

Even with these cautionary words, however, we believe the healthcare cases may present a more significant problem—and opportunity—for the Court with respect to maintaining its long-term, diffuse support (what we sometimes call its legitimacy). Interest is high, and public skepticism with its national government is high too.

Polls have also shown that the public wants to see some or all of the law struck down. A New York Times/CBS News poll earlier this month had 41% wanting it struck down altogether and another 27% wanting to keep the law but overturn the individual mandate to buy insurance. But there still are millions of Americans who want the entire law kept in place, and all will be watching to see how their concerns have been taken into account.

The Court could improve its standing if it has reached consensus by at least six justices, which would demonstrate its ability to reach consensus on neutral principles that transcend party affiliation. In addition, to the extent that the Court’s written opinions honestly acknowledge the sincerity of opposing views, while carefully explaining the basis for the decision (or dissent), they will foster the appearance of a respectful institution that takes the people’s concerns seriously. In short, the justices will be viewed as having followed a fair process to reach its decision.

Steve Leben, David Rottman & Kevin Burke

Good Judging Often Starts with Good Listening   1 comment

Our last blog entry asked, “Where to start?” A good case could be made that good judging often starts with good listening. After all, for the average trial judge, where does the information come from? A great deal comes from a witness, an attorney, a probation officer, or someone else who speaks to the judge in the courtroom.

Yet how much training does the average judge get on listening skills? None.

Contrast this with the training we all get in reading. Reading comprehension is taught and studied as we go through elementary and secondary education—but we don’t get trained in listening skills or tested for listening comprehension.

When Kevin Burke and I do half-day or full-day training programs, we often include a listening-skills test from HRDQ, which comes with a booklet providing tips for improving those skills. You can take the online version of the test for $16. (Psychology Today offers its own listening-skills test online for $7.) Both sets of tests rely upon self-reporting about how you approach listening situations.

HRDQ breaks down its suggestions into three categories:
Staying Focused: Sometimes we’re our own worst enemy when it comes to listening—we have lots of other things on our mind. The careful listener prepares to give the speaker full attention, monitors whether attention strays, and corrects the situation if it does.
Capturing the Message: We need to be open-minded to capture the message the speaker is trying to send rather than our preconceived notion of what is being said. This can be especially true for judges who hear (or think they hear) the same stories day after day. Offering a summary of what you’ve heard so that the speaker can confirm you’ve got it right can help.
Helping the Speaker: Not every speaker can handle a judge’s interruptions or distracting verbal comments. If you’re really trying to listen to what the speaker wants you to hear, you’ll be willing to make the environment conducive for good communication.

Given the extent to which good listening skills can be critical to judicial performance, this is an area that deserves greater emphasis. And it fits nicely with procedural fairness: how can a litigant perceive that we’ve given them voice—by listening, understanding, and addressing their concerns—if we haven’t first given the listening part a good effort?

Let us know what you think. How do you maintain your focus during a long day on the bench?

Posted May 26, 2012 by Steve Leben in Courts

Tagged with , ,

Where to start?   Leave a comment

There is ample material about procedural fairness on ProceduralFairness.org for judges and court administrators to start the process of making themselves and their courts more effective. The question is where to begin that process. There are two levels on which procedural fairness principles can be implemented in order to begin improving court outcomes and public satisfaction.

Most immediately, the individual judge can become more adept at demonstrating the criteria of procedural fairness during their interactions with litigants, lawyers, witnesses and others. Relevant tools on ProceduralFairness.org include descriptions of programs that videotape judges while on the bench to provide them feedback to use for self-improvement, as well as video and print resources that can be used to create judicial education courses on procedural fairness. The “Resources” tab includes “tips for judges” that can serve as a check-list to guide their behavior. Similarly, individual court administrators can become more effective by embracing procedural fairness principles in their interactions with subordinates.

Second, an entire trial court or court division can revise its policies and procedures in ways that seem likely to promote behaviors that are perceived as procedurally fair. These changes can be subtle but still highly effective.
Whether the target for change is the individual judge or an entire court, a possible starting point is to reflect on how knowledge of procedural fairness can help you make sense of successes in the past. Here are two examples of hindsight, brought on by learning about procedural fairness. Both examples come from a series of conversations with presiding trial court judges initiated to learn their reaction to a comprehensive judicial branch-wide program promoting procedural fairness principles.

In the first example, the presiding judge of a medium-size court (circa 30 judges) was already a believer in the program. When she became presiding judge, she was alarmed by the pile on her desk of phone message slips and letters, all containing complaints from small claims litigants that they had not had their day in court. When she asked her assistant about the pile, she learned that that such communications were constantly flowing in. Along with several other judges and her court administrator, the presiding judge went through the complaints. They began to notice a pattern – many of the litigants felt that their case had not been adequately considered. The judges identified as the problem their court’s practice of not giving small claims case decisions from the bench as contributing to this sentiment. Instead of giving the decisions from the bench, the court sent litigants form letters, some weeks after their trial, with the equivalent of “won” or “lost” checked off. A change to the letter remedied the problem. The judges identified five or so main reasons that a small claims litigant might end up on the losing side. With the relevant sentences inserted in each letter, the flow of complaints dwindled and then virtually ceased. The new, reasoned approach communicated that the decisions had been reached through a fair process. For the judges, learning about procedural fairness theory made sense of the success of their revised approach to small claims court.

Another “home grown” example of procedural fairness is a practice that surfaced in conversation with the presiding judge of another medium-sized trial court in the same state. Her court has adopted the practice of formally swearing in all new staff as court employees. The presiding judge personally administers the oath, with other judges and court staff as an audience. For this judge, hearing about procedural fairness made sense of the apparent benefits the court has gained from the inclusive, respectful manner in which it treats its employees.

In sum, a look to past experience may be a useful starting point for those considering the potential value of taking a procedural fairness approach to personal improvement or court reform. Ask yourself what has worked and what has not worked, and think if the lens of procedural fairness offers insights into how to do a better job.
David Rottman

Problem-Solving Courts and Perceptions of Procedural Fairness   1 comment

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.

David Rottman

Posted April 30, 2012 by drottman1 in Courts

Tagged with ,

From the Supreme Court to Your Local Courthouse   1 comment

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.

David Rottman

Posted April 23, 2012 by drottman1 in Courts, Trial Courts, U.S. Supreme Court

Tagged with ,

History Lesson: The Procedural Fairness Legacy of the Affordable Health Care Act   1 comment

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

David Rottman

Posted April 13, 2012 by drottman1 in Courts, U.S. Supreme Court

Tagged with , ,