Like everyone else, I was surprised last weekend to hear that Justice Antonin Scalia had died. Whether you agreed with him or not, he was a justice whose work changed the legal world.
I teach a law-school course on statutory interpretation. Coincidentally, at our first class after Justice Scalia’s death, our scheduled topic was his methodology for interpreting statutes. Before Scalia, courts often started with the legislative history, not the text. As he noted in a 1989 opinion, a brief to the Court had recently said, “Unfortunately, the legislative debates are not helpful. Thus, we turn to the other guidepost in this difficult area, statutory language.” After Scalia began pointing out arguments like that, everyone came to agree that you must start with the statutory text—and often you will end there as well, even if you also check the statute’s meaning against legislative history, statutory purpose, or past precedents.
But Justice Scalia brought more to the Court than the substance of his arguments—he also had an often-acerbic style and, in recent years, what seemed an openly partisan bent that contributed to the drop in public approval of the Court. Linda Greenhouse has put together an excellent review of where the Court sits today and how it got there (“Resetting the Post-Scalia Supreme Court”), published yesterday in the New York Times. She deals with both substance and style. Our blog is not concerned with the substance of Supreme Court opinions; we are concerned with the appearance of fairness in judicial proceedings. One of the basic tenets of the procedural-justice movement is that no matter who may win on the merits of a case, it’s important that those on all sides believe the judicial hearing was fair to them.
And this brings me back to the Greenhouse op-ed, in which she suggests that it’s time for the justices to hit the reset button. She recognizes that her column may seem “uncharitable, even tasteless” so soon after Scalia’s death, but she makes some good points, including some that Minnesota judge Kevin Burke and I have made in presentations around the country and in comments here on the Procedural Fairness Blog.
One key observation is that public disapproval of the United States Supreme Court—which had long enjoyed broad public support—has reached a new low. The Gallup Poll at the start of the Court’s term last October showed 50% disapproving of the way the Court handled its job, with only 45% approving. Equally important is that people now view the Court in a highly partisan way.
Viewing the Court as partisan rose sharply with the Bush v. Gore decision—after it, 80% of Republicans approved of the job the Court was doing compared to only 49% of Democrats. Those numbers evened out again until shortly after the appointments of Chief Justice John G. Roberts, Jr., and Justice Samuel Alito. In late 2006, 75% of Republicans approved of the Court while only 48% of Democrats did.
But once President Barack Obama began making appointments, approval scores flipped—by mid-2009, 75% of Democrats approved of the Court compared to only 49% of Republicans. And the most recent Gallup survey in mid-2015, after decisions on same-sex marriage and the Affordable Care Act, showed only 18% approval among Republicans (compared to 76% for Democrats and 49% for Independents).
Can the judiciary—and the American justice system—survive over the long haul with numbers like this? I think it’s a cause for real concern.
Greenhouse worries “that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution.” She provides both substantive and procedural examples; I want to talk about the procedural-fairness side.
Greenhouse points to other examples and to Scalia’s “frequent parroting of right-wing talking points in recent years.” She suggests that this might be a time for the remaining justices to “tak[e] stock of the court, where it has been and where it goes now.”
I would like to follow up on her column with a few suggestions for the future of the court:
The justices should approach oral arguments more as an open exchange with counsel than as an attempt to persuade their colleagues of the right result for the case. Often, it’s clear in oral argument how most of the justices will vote. Why not ask more open-ended questions, leaving the debate with colleagues for the case conference among the justices? I am an appellate judge myself, and I will concede that there are times when I try to move the discussion toward a point that I hope will be persuasive to a colleague. But I also try to ask some open-ended question even to the counsel for the side I think will likely lose. Doing so at least gives the attorney a chance to address what you see as his or her weakest point. And I try to ask the side I think likely to win to address its weakest point too, thus insuring that questions are addressed to the weaknesses of both sides.
The justices should allow television coverage of their oral arguments. I have long thought that one of the reasons they don’t allow it may have been the way Justice Scalia carried on at oral argument. He did not fit a model of procedural fairness, and many of his remarks, particularly if cut up into bite-sized snippets, could have been quite harmful to the Court’s image. But many state supreme courts regularly stream their oral arguments over the Internet, allowing the public to see them at work. If the justices conducted themselves with an awareness of the importance that they appear open-minded and willing to listen to the parties’ arguments, televising the Court’s proceedings could be a key step toward improving the public’s impression of them.
The justices should write opinions that are designed for the lay reader, not the constitutional lawyer. The decision in Brown v. Board of Education was intentionally made short enough that it could be reprinted in full in a newspaper. Even legal scholars and judges find it discouraging to wade through some of the lengthy and multiple opinions issued in some cases. How can the public have a sense that the Court has handled a case fairly if they can’t understand the Court’s opinion, which is its only work product?
Like Ms. Greenhouse, I don’t suggest that the low public-approval scores for the Court today are all based on Justice Scalia’s actions or even on those of all the justices put together. This is an era of intense partisanship. This is also an era in which trust in all institutions is low (and the Supreme Court’s approval remains higher than the other branches of the federal government).
Given this climate, we must earn the public’s trust today in each encounter we have with them. For the Supreme Court, these encounters occur through media coverage and written opinions, and could be valuably supplemented by allowing video coverage of oral arguments. For the long-term health of the judicial system, we need greater public support, and the public needs to believe that important cases have been handled fairly. Letting them see more of the process, making sure that the process appears to have been a fair one, and writing decisions so that members of the public can understand them would all be good steps to take.—Steve Leben
In our last post, we looked at the effectiveness of procedural-fairness principles among adolescent offenders. This time we talk with someone researching another group of offenders—inmates in a women’s prison. Thomas Baker and his colleagues surveyed these women to determine the factors that lead to a greater sense of obligation to obey the law. For one, the researchers wanted to determine whether the relationship demonstrated in other studies between perceptions of fair treatment and willingness to obey the law would hold true for this group.
And it did. They found that female offenders who saw the courts as more procedurally just reported a significantly greater obligation to obey the law.
But this study also found a new factor that might be important—the racial similarity or difference between the offender and prosecuting attorneys. For white female inmates, those who had a white prosecutor were significantly more likely to perceive the courts as procedurally just. Nonwhite female inmates perceived the courts as more fair if they encountered a minority prosecutor, regardless of whether the prosecutor was black or Hispanic.
If you came across this title in our quarterly research report, The (Ir)relevance of Procedural Justice in the Pathways to Crime, the title alone might have surprised you. It surprised us too—so we decided to talk to the author for our second interview on recent procedural-justice research. As it turns out, the article doesn’t argue that procedural fairness isn’t important. In fact, as author Megan Bears Augustyn explained, procedural fairness is relevant to many offenders, and it is important for ethical reasons. But when it comes to increasing compliance and satisfaction, she says fair practices don’t have the same effect on everyone, at least in her study with adolescents.
Augustyn has researched adolescent behavior as well as procedural fairness, and she noticed that the effects of procedural fairness were not as strong among adolescents as among adults. She wondered if the results would break down differently for different types of adolescent offenders as well—those who start offending at an early age (usually driven by mental-health issues or problems at home) and those who don’t start offending until they are teenagers (often motivated by peer pressure).
Sure enough, Augustyn found that fair treatment didn’t have much of an effect on the early-onset offenders. Their reasons for offending were too complex to address by simply showing them respect and giving them voice. For the more limited adolescent offenders, however, fair treatment could affect attitudes and help curb illegal behavior.
Augustyn discusses this research and her conclusions in more detail in the interview linked below—available in both extended and edited versions. If you’d like to download the files, just right click the link, then click “Save target as.” Once again, the interview was done by Justine Greve (M.A., American Studies), a staff member with the Kansas Court of Appeals.—Steve Leben
We’re introducing a new feature of the Procedural Fairness Blog today. For new research on procedural fairness, we’ve already recommended our quarterly research reports. One of the authors of the quarterly reports, Justine Greve (M.A., American Studies), a staff member at the Kansas Court of Appeals, is going to put her past training in public radio to work for us by interviewing authors of some of the new research we think you’ll find of interest.
Her first interview (available in either an abridged or extended format) is with Kelly Frailing and Diana Carreon, who did an interesting study of a drug court in Laredo, Texas, where most of the population is Hispanic–and generally bilingual.
After watching judges and participants switch between Spanish and English at the Laredo drug court, Frailing and Carreon wanted to find out how being able to speak with the judge in Spanish influenced people’s perceptions of fairness in that court. They found that participants saw bilingualism as a positive feature of the court, even reporting that they felt the ability to communicate in Spanish was important to success in their case.
This may seem unsurprising in a community where the vast majority of the population is Hispanic: anyone would feel more comfortable speaking to a judge in his or her primary language. But almost all of these drug-court participants were bilingual from an early age, fluent in English as well as Spanish.
In the interview, Frailing and Carreon discuss their study and interpret their findings, suggesting that language in a court setting may mean more to people than just being able to understand and to be understood. Steve Leben
For more than a year, our website has been posting a Quarterly Research Report featuring the most notable scholarship we’ve found in procedural fairness and procedural justice. The report is edited by Justine Greve, M.A., a staff member at the Kansas Court of Appeals, and Shelley Spacek Miller, J.D., a staff member at the National Center for State Courts.
The Summer 2015 report has just been posted, and one interesting study compares views about police legitimacy among residents of St. Louis County, Missouri, in interviews taken before and after the August 2014 shooting of Michael Brown. Researchers from Southern Illinois University Carbondale had done extensive interviews of nearly 400 people living in high-crime and disadvantaged parts of St. Louis County for a study on policing in 2012 and 2013. Most of the respondents in that survey lived within six miles of where Brown was killed. So the researchers followed up with new interviews of the same people in September and October 2014 to compare public perceptions before and after Brown’s shooting.
The 2014 questioning came immediately after protests, looting, and violence that followed the Brown shooting. The interviews asked questions related to police legitimacy (defined by the researchers as “a view that police authority is valid and to be respected and adhered to”) and to trust in police and procedural justice (defined by the researchers as “a belief that police act fairly, impartially, and respectfully”).
Overall, perceptions of both police legitimacy and trust/procedural justice declined (by 5% and 17% respectively). But the perception rose slightly for nonblack residents (up 2% for each) while falling significantly (by 8% and 26%) for African-American respondents. Views also diverged in feelings about the public and police responses. A majority of nonblack respondents disagreed with the public’s response to the shooting, while a majority of blacks agreed with it. A majority of nonblack respondents agreed with the police response to protests, looting, and riots in the area, while a majority of black respondents did not.
This study, of course, captures views from only a small geographical area, but the respondents certainly intensely experienced the events of that time. It’s one of many new research articles and reports that you can find in the latest Quarterly Research Report.
The Center for Court Innovation (CCI) is seeking courts to participate in an assessment of each court’s procedural-fairness practices. CCI is accepting applications until June 12 from local courts with the jurisdiction to hear criminal cases.
The official Request for Proposals gives full details on the project, but CCI says that it hopes to advance procedural-justice goals “by (1) highlighting promising practices for the field at large, (2) helping jurisdictions identify problem areas, and (3) outlining short- and longer-term plans to implement appropriate interventions.”
CCI suggests that this project “is targeted to criminal courts interested in deepening their understanding of procedural justice and examining whether and how their current practice promotes the core elements of procedural justice: voice, respect, understanding, and neutrality.” The selected sites will gain the feedback of outsiders who are familiar with the background research in this area.
The project will focus on four key areas at each site:
· Providing information about court procedures to court users and to the community;
· Fostering a user-friendly courthouse environment;
· Developing mechanisms to solicit and respond to feedback from staff and court users; and
· Improving the communication strategies used by judges and other court staff.
Project staff will provide suggestions for improving practices in each court.
From time to time, it’s useful to take stock of some of the evidence that demonstrates that the judge who spends the time to learn procedural-fairness principles and who shows the discipline to practice them regularly is doing something valuable. Toward that end, let’s consider a study of drug courts operating in 29 different locations around the United States.
Like many other studies, this one concluded that drug courts do produce both significant reductions in relapse to further serious drug abuse and significant reductions in criminal behavior. But the researchers asked a critical question: Why does this occur? And that’s where the principles of procedural fairness came squarely to the fore:
“Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated them more fairly than the comparison group, including demonstrating greater respect and interest in them as individuals and greater opportunities to express their own voice during proceedings. Furthermore, when offenders have more positive attitudes toward the judge, they have better outcomes. This was true across all offender subgroups when examining demographics, drug use history, criminality, and mental health. A separate analysis drawing upon the results of structured courtroom observations found, similarly, that drug courts whose judge was rated by members of the research team as exhibiting a more positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic, consistent/predictable, caring, and knowledgeable) produced better outcomes than other drug courts. Both analyses reaffirmed the central role of the judge.”
Drug courts by design provide greater voice to defendants and opportunities for judges to show respectful treatment of defendants. Judges who do a good job in carrying out these roles get better results—and this appears to be true across various demographic groups. Sounds like a winner to me.
The study, reported in 2011, was done by the Urban Institute, the Center for Court Innovation, and RTI International. The Executive Summary is a quick and easy read.