An example showing law is not politics by another name in the federal district courts

If there is anything I desperately want to believe it is this:  The great majority of federal district judges do not act like politicians in black robes. In the trial courtrooms, where the great bulk of the real work of the federal courts are done, federal judges try their fragile best to apply “the law” as they understand it.

Today, I am overjoyed at a headline in a major newspaper and the accompanying front page article. Please read: Robert Barnes, From a diverse group of judges, a unanimous opinion on same-sex marriage, Washington Post (May 26, 2014).* Powerfully, Barnes writes:

The headlines are so consistent, they could be written by a computer: “Judge strikes down state ban on gay marriage.”

But the federal judges who have supplied an unbroken wave of victories across the country to supporters of same-sex marriage are more diverse than their rulings would suggest: white and black, gay and straight, nominated by Democrats (most of them) and chosen by Republicans (a few of them).

Long ago, after I wrote both partial birth abortion opinions that made it to the Supreme Court (where I went 1 for 2), I came to the conclusion that federal district judges were perhaps the last group of federal judges who applied the law (mostly through the precedent based common law reasoning) rather than their own policy or political views. See, for example,  Richard G. Kopf, AN ESSAY ON PRECEDENT, STANDINGBEAR, PARTIAL-BIRTH ABORTION AND WORD GAMES-A RESPONSE TO STEVE GRASZ AND OTHER CONSERVATIVES, 35 Creighton Law Review 11 (2001-2002).

I was tickled pink (to use a phrase my lovely grandmother loved) when the legal academics confirmed my views after doing the hard empirical work.  See, for example, the following post entitled It’s a fact: Federal district judges are carpenters not politicians

Please forgive me for appearing to beat the hell out of dead horse, but I return to The Behavior of Federal Judges. In this post, I want to concentrate on the full title of the book–that is, The Behavior of Federal Judges, A Theoretical & Empirical Study of Rational Choice.  In particular, I want to focus on “rational choice” and district judges.

Epstein, Landes and Posner found that federal district judges as a group tend to apply legalistic reasoning to resolve cases rather than relying upon their own ideological preferences. While this is good news for folks like me who view the proper judicial role as weak, one wonders why federal district judges, unlike say Supreme Court Justices, tend not to be ideological in their decision-making.

. . .

Federal district judges do so because the alternative–going outside the norm of conventional legal reasoning–is wasteful. That is, the federal district judge will have to work hard to make an ideological point not supported by conventional legal reasoning, and that work will ultimately be unsuccessful–a wasted effort. The data collected and analyzed by the authors strongly supports their ultimate conclusion that federal district judges are not politicians in black robes.

. . .

Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views. This group of judges act more like carpenters than politicians. This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.

So, today, as I proceed out the door for my “infusion” of chemotherapy, I am also infused with pride for the many men and women who sit as federal trial judges. When reading the opinions of federal district judges, the public, Federalist Society members, American Constitution Society members, Circuit judges, and Supreme Court Justices may not like what they see. But what they see is not politics.


*As always, thanks to How Appealing. What a wonderful resource!

5 responses

  1. “In the trial courtrooms, where the great bulk of the real work of the federal courts are done…” I take it hat you meant the district courts, because as near as I can tell, very little of the work of those courts is done in the courtroom. Certainly, given our distorted criminal justice system, few defendants are willing to take the risk of trial, and thanks in part to district court judges who are quick to throw out claims on motions to dismiss or for summary judgments, civil trials are a threatened species. That leaves motion and other kinds of hearings to be done in the courtroom, and while those are important they are hardly the bulk of the court’s work. (I’d be interested to hear whether my perception that most motions are decided in the judge’s mind before oral argument is accurate.)

    As for ideology, there’s ideology and ideology. I am prepared to believe that on issues such as gay marriage, and more mundane commercial matters, etc., judges are willing to declare independence from their personal preferences, and I applaud that. But recently the Fifth Circuit decided that a law in Texas that would close most of that state’s abortion clinics on the flimsy (indeed, tissue-thin) ground that doctors should have local admitting privileges–which most local hospitals would not grant, credentials or no–did not impinge on the rights allegedly guaranteed by Roe v. Wade. I’m sorry, judge, but I see partisanship at work. And in my own field, employment law, many federal judges seem to find it impossible to wrap their head around the idea that employment discrimination still exists. In one federal district (the Northern District of Georgia, I believe) in a recent year a survey showed that of the employment-discrimination claims decided, the only ones sent to trial involved plaintiffs who were white males. Can it be that the plaintiffs’ employment lawyers in Georgia (I know some of them, and they are superb) could not find a single meritorious case involving women or people of color? Or did the judges engage in fact-finding and act as jurors, entwining their own prejudices in their decisions, to eliminate claims that should have gone to juries?

  2. Now, I’m confused. Although I hate to mention it, I never got an answer. Ken had a right to a neutral judge that your colleagues refused to enforce. Jon Margolis makes great points, too. If you can take pride in your colleagues’ successes, shouldn’t you at least acknowledge their failures?

  3. Jon,

    Thanks for your comment. I have several responses.

    First, you are correct that my phrasing was inaccurate. I meant to say that the great bulk of the work of federal courts are done in the trial courts (the district courts) and not necessarily in the district judge’s courtroom.

    Second, you wonder whether I have decided a motion prior to hearing oral argument. Sometimes “yes” and sometimes “no.” If the briefs are good, more frequently “yes.” Note please that I seldom hear oral argument on motions to dismiss or for summary judgment in civil cases.

    Third, you say there is “ideology and ideology” and that you are “prepared to believe” that in some cases (“gay marriage or more mundane commercial matters”) judges “declare their independence.” You then cite to a Fifth Circuit case about abortion. Let me simply say that (a) I am not talking about the Fifth Circuit or federal appellate judges; and (b) the empirical work of Posner, et al., disproves your thesis that federal trial judges are frequently political actors.

    Fourth, you cite the Georgia employment law study prepared by a well regarded plaintiffs firm and cited by the Atlanta Constitution. I am very familiar with it. I have written about it and I have even given the author my statistics for analysis. See For now, just read, we’ll talk later (hint, could Vince be right?), Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations, Kopf’s additional response to Ms. Farahany. See also Thoughts on employment cases and summary judgment from someone who has seen how the sausage is made

    In short, I don’t think the Georgia examination proves anything except that district judges do what their told by the appellate courts and the Supreme Court. That is precisely what Posner, et al found when they looked hard at the national data. Now, you may think the results stink in employment and civil rights cases, but in the main it is not politics driving the district judges. It is precedent.

    Jon, I always appreciate your engagement. Thanks for challenging me! I truly mean that.

    All the best.


  4. I’m interested in your note that you don’t generally have argument on motions to dismiss or for summary judgment. Those are the most important motions in civil cases. I think judges should routinely,if not always, hear the parties, if only to check their views or to find out if there is some important point that remains to be fleshed out. To those of us in the trenches, the idea that a judge is deciding our client’s fate on the papers is extremely frustrating, sometimes infuriating. (I’m indulging in only the mildest hyperbole in saying “our client’s fate;” for very many plaintiffs–and some defendants at least–the case really does decide their fate , in the sense of their future.)

    As for those judges in Georgia following precedent, motions for summary judgment, in particular, are so fact-sensitive that it is all to easy for a judge to apply her/his personal views while citing prior case law. Take the well-known concept of “stray remarks.” Is there any workable definition of stray remarks? No. Is there any way to separate the cases where a judge dismisses a comment like “Isn’t your bag getting a bit heavy for you, Harry?” as evidence of age discrimination (happened to a partner of mine), from another case in which a judge finds a remark like “the Chink is faking,” (one of my cases) to establish a factual dispute? There is not. The judge who dismisses a comment as a stray remark is either saying that s/he doesn’t want the case to go to trial or that no reasonable juror–not one–could find the remark probative of the issues. Sorry, judge, but that’s imposing personal views.

    (At the risk of going too far afield, in my view Nancy Gertner was right to say that “stray remarks” are really “windows to the soul” of the witness.)

  5. Jon,

    Two things:

    First, I once set all such motions for oral argument when I was a “baby” judge because I was convinced that after reading the briefs, and hearing the lawyers, I could rule from the bench. I tried that and it failed miserably.

    What happened was this: When I pushed hard on the facts, the lawyers backed off their statement of facts in the brief and I had to spend even more time on the case. I am sorry Jon, but we now have a system (see our local NECivR. 56.1) that requires lawyers to stand by the record rather than “weasel,” and that’s good enough for me. Given that we rank 8th in the nation, and third in the Circuit, for federal criminal cases, I have enough to do without hearing oral argument on motions to dismiss and for summary judgment in civil cases.

    Second, Judge Gertner was a great judge, I bet she’s a wonderful teacher at Harvard and I consider her a friend. I wrote about her article you mentioned. See here. In short, I understand your point and her point as well. But, let’s be candid, the whole “stray remark” business is an appellate court analytic and not some invention of district judges.

    All the best.


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