Judges and the Duty to Listen

One of the things progressive legal academics love to angst about is the relationship between minority rights and the courts. Sometimes, it seems like our analysis reflects little more than the changing political alignment of the judiciary. The Warren Court appears to make great strides in protecting marginalized communities from democratic predations, and so we produce deep tracts explaining why courts are important countermajoritarian bulwarks. Then we experience a significant conservative retrenchment during the Burger/Rehnquist/Roberts years, and the tenor of the scholarship changes -- it turns out that courts are poor vehicles for progressive social change. And now, with Democrats potentially gaining control over the judicial branch for the first time in a generation, the pendulum swings again: progressives are urged to abandon our "defensive crouch" and reassert a muscular left constitutionalism.

None of this seems to do much in the ways of explaining why courts are supposed to be systematically more sympathetic to outgroups compared to the political branches. One could argue that we got idiosyncratically lucky with the Warren Court, and have been misled ever since. The Warren Court, after all, did what it did in part because it turned out that the overseer of Japanese internment and a former Alabama klansman were willing to promote historically progressive racial policies. This does not seem like the sort of historical fortune likely to be replicated. There is something odd, it must be said, about starting with the problem of political marginalization and ending with the idea that we should delegate those issues to a institution that is whiter, maler, richer, and older than the American population writ large.

The classic argument in favor of the courts is that they are immune to the vagaries of political passion and therefore can resist waves of irrational prejudice or bigotry that might sweep over the people writ large. This is basically an argument from elitism -- that judges just tend to be better, smarter, more sensitive people than the hoi polloi. If we didn't think that, then why wouldn't it be just as likely that judges would diverge from majoritarian preferences in ways that are especially reactionary or backwards? If you're looking for examples of the brave Supreme Court standing on principle against clear majoritarian sentiments, you can start with Citizens United and work your way back to Lochner.

All of that being said, I think there actually is a reason to think that judges might have a type of advantage over other deliberative bodies when it comes to protecting the interests of outgroups. Simply put, judges -- some of the time -- have to listen to arguments that other people don't. This is the flipside of the more well-explored observation that judges are not tasked with and do not have the authority to right every sort of social wrong. They can only adjudicate those claims which fall within relatively demarcated borders of a cognizable legal case or controversy. But if a claim does check off the right doctrinal boxes, then judges have to listen -- they have to provide a hearing, they have to provide reasons -- even if the claim in question is alienating, difficult, or uncomfortable.

This is a unique deliberative characteristic. I can't force Congress to hold a hearing on a bill, or get a meeting with the president. I can't compel the media to publish my column or the nightly news to broadcast my speech. Even in private life, I cannot typically force anyone to listen to an argument they'd rather not consider (many of you have already quit reading this blog post). We are simultaneously free to consider any claim we'd like and free to ignore any claims that don't suit us. And if we're being honest, we exercise this freedom in ideologically biased ways -- we evade even considering claims that are dissonant or discomforting. For example, I'm a lefty sort of a guy, and consequently I don't watch Fox News. I tell myself that it's because Fox is "biased" -- and perhaps it is. But I don't listen to Fox's arguments, consider them, and then ultimately reject them when it turns out that they don't line up with evidence. I just don't watch it all. The former tactic, of course, risks the possibility that a Fox segment I'm likely to disagree with will nonetheless have an important point I should consider, one that would seriously challenge my prior beliefs. So why chance it? If I need to triage scarce deliberative resources anyway (and I do), I might as well do so in ways that further guard and reinforce my ideological commitments. 

But courts are limited in their ability to do that. Judges are constrained in what they can hear, but also constrained in what they can ignore. If we think about why early gay marriage claims were pressed through the courts, I'm not convinced its because LGBT organizations thought that judges were "better people" than legislators. The problem with legislators is that they didn't have to even consider the argument -- they could dismiss gay marriage as "radical", "extreme", "a non-starter" -- none of which actually respond to the case for gay marriage on the merits. And while there are plenty of good legal arguments against a constitutional right to gay marriage, "it's a non-starter" isn't one of them. Judges had to listen, and they had to provide reasons. And that was no small advance for a gay rights movement for whom even getting basic public consideration was no small achievement. Charles Hamilton Houston provided the same rationale for the NAACP's court-centered strategy: “[W]e use the courts as a medium of public discussion, since it is the one place where we can force America to listen."

Courts are a place where we as a polity are -- some of the time -- forced to listen. We shouldn't exaggerate the importance of that characteristic -- one can still listen in a biased manner, and one can listen in a totally impartial manner and still reject a claim because the substantive legal rules simply don't operate to the outgroup's benefit. But it still is something that matters. As a deliberative institution, courts can sometimes force reasoned debate and public consideration in circumstances where in private life we'd probably just change the channel. That's not everything. But it is something.

Comments

[Patrick S. O'Donnell]

Perhaps this is one reason why Rawls, in Political Liberalism, wrote that "in a constitutional democracy with judicial review, public reason is the reason of its supreme court.... the supreme court is the branch of government that serves as the exemplar of public reason." As for how the "hoi polloi" might incarnate the virtues of deliberative public reasoning (and thus fortify our conceptions of democratic legitimacy), see Robert E. Goodin's Innovating Democracy: Democratic Theory and Practice after the Deliberative Turn (Oxford University Press, 2008). Finally, for an intriguing non-elitist epistemic argument for democracy based on the idea of "collective intelligence" (rather than, say, the 'folly of crowds' or the 'rule of idiots') or "democratic reason" not dependent upon unrealistic expectations for widespread "participatory" democracy (but beholden to Athenian democracy, philosophers like Spinoza and Condorcet, and our foremost democratic theorist, John Dewey), please see Hélène Landemore's Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press, 2013). Landemore's book in fact enables us to consider the possible if not probable reasons why a supreme court may fail to incarnate public reason in the deepest and widest sense.

[anon]

Please describe how Citizens United went against clear majoritarian sentiments .. (remember, the question in oral argument about banning books (answer: yes)? about putting the news corporations out of business or issuing licenses for "journalists," etc.")? Please don't equate demagoguery with "clear majoritarian sentiments"!

(One wonders, what does the term "progressive" actually mean in your discourse?)

"But if a claim does check off the right doctrinal boxes, then judges have to listen -- they have to provide a hearing, they have to provide reasons -- even if the claim in question is alienating, difficult, or uncomfortable."

Obviously, not at the Supreme Court level, the level you seem to be most enthralled by (e.g., references to the Warren Court, which only serve, in your telling, to invalidate the bigotry and prejudices that "progressive legal academics love.")

Your overall theme - that folks who can't be heard in the body politic are heard, sometimes, by courts - is basically too limited in practical reality and validity, IMHO, to be persuasively asserted.

What you might more plausibly argue is that, sometimes, folks whose claims have been heard and rejected by the body politic (or accepted, but to an insufficient degree in the view of those claiming relief) can be heard and find relief in courts.

It is usually in these instances that courts create political discord, with some recent notable exceptions that might lead some to come to the wrong conclusions about a general governing principle.

[Orin Kerr]

Are you arguing that being forced to listen to an argument can open a decider to persuasion, that being forced to listen is useful because it creates a forum in which the issue is debated that can lead non-deciders to persuasion, or both?

[David Schraub]

Both. The former is true because nobody has ever been persuaded by an argument that they didn't hear (which creates a very strong incentive not to hear arguments where one would rather not revise a position). The latter can be overstated (since law folk tend to vastly overestimate the degree to which non-lawyers pay attention to legal decisions), but I do think there is some trickling effect when legal elites consider cases and opinions and think about arguments that they otherwise perhaps would not have thought to consider.

And note that the former can cascade to the latter. If one judge (decider) rules that gay marriage is a constitutional right, that forces non-deciders (everyday citizens and politicians) to grapple with that issue in a big way. This was the functional effect of Goodrich -- it's not that the opinion persuaded everyone or even a majority of Americans at the time, but it did signal that gay marriage was an issue on the debating map, and that had huge ramifications for the gay rights movement (which is not to say that getting an issue on the debating map necessarily leads to winning, but it's clearly a step forward from it not functionally being something that was an issue of major public debate).

[Enrique Guerra Pujol]

Being forced to listen to the other side and being able to update one's priors are not the same thing.

[Orin Kerr]

David, thanks for the response. I wonder if SSM is an exceptional case, though. There are lots and lots of arguments made to courts that they very quickly reject that no one ever discusses. And there are lots of arguments that courts take seriously, and even agree with, that lead to very little public discussion. (Think the polygamous marriage decision, which was received very differently.) More broadly, the cases that come to mind will be the cases that we can easily recall, and those will be the cases that led to tons of discussion. While there are certainly a few examples of what you say happening, I'm not sure how fair it is to generalize from those few examples.

[David Schraub]

Orin: I'd agree that SSM is a particularly strong example (though I'm genuinely curious about where polygamy will go in the next 20 years. Already I've seen some branches of legal academia take it a lot more seriously than they did even ten years ago). It's obviously right that there's a selection bias (though I'm not sure how far that argument takes us comparatively -- surely, the vast majority of claims and arguments presented in non-legal fora also go nowhere and are quickly forgotten). At the very least, it seems like there needs to be some sort of social movement or social body that is there to pick up the conversational ball post-judicial ruling. But I think it makes sense to say that, for those groups, litigation can be a sensible part of their overall strategy of public persuasion as a means of getting the ball rolling.

The other thing I'd say is that, at a microlevel, civil litigation can be thought of as a chance to force people to listen to disputes which are probably too petty to grab anyone's attention in private dialogue. Maybe nobody wants to hear me talk about how my boss fired me due to my religion or how my neighbor is tapping into my well water. But -- assuming the doctrinal boxes are checked -- 12 members of the community are pretty much obligated to listen to my claim and deliberate over it. And there's a sense in which that's pretty cool, I think.

[Orin Kerr]

David, to to be fair, 12 members of the community are obligated to consider it only if it gets to the jury -- which is vanishingly rare.

[David Schraub]

Indeed. One implication of my argument is to be wary of doctrinal developments that are too quick to prematurely toss cases out of court (e.g., Twiqbal) because they undermine a unique epistemic virtue courts have as against other sites of deliberation.