The Volokh Conspiracy
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Razzle Dazzle Racism
Brown, Milliken, and Judge Brown.
Today the Supreme Court decided the Texas redistricting case by a 6-3 vote. I'll get to my analysis later, but I have to cover some other ground first.
I recently read R. Shep Melnick's review of Michelle Adams's new book on Milliken v. Bradley. I was familiar with the Supreme Court's landmark decision that curtailed forced busing. But I did not know much about the lower court litigation, which Adams covers in some detail.
Judge Stephen John Roth presided over the case. It seems that Judge Roth was initially skeptical of the claim that he could order children throughout Detroit to be bussed to faraway schools. As Melnick relates, Judge Roth went through a "conversion" after a 41-day trial:
Support for urban/suburban busing came almost entirely from Judge Steven Roth, egged on by the white Detroiters who had been allowed to intervene in the case. As Adams and many others point out, Roth underwent a conversion in the 41-day trial. Originally skeptical of the NAACP's constitutional arguments, he became convinced that government actors had engaged in housing segregation that led to segregated schools.
Adams effectively reviews the housing evidence that had a profound impact on the judge. She says far less about the evidence that convinced him that using busing to eliminate predominantly Black schools would improve the educational opportunities of minority students. The evidence on housing was central to Roth's relatively uncontroversial liability finding. The evidence on education was crucial to the extraordinary remedy he fashioned after finding a constitutional violation.
Judge Roth later told a reporter, "We all got an education during the course of the trial. It opened my eyes."
Judge Roth became convinced that to enforce Brown v. Board of Education, he had to enter a remedial scheme that was unfathomable. This was not a conversion. It was an apotheosis: Judge Roth saw himself as a god who could remedy society's ills. The trial deified him.
This line from Judge Smith's dissent was directly on point:
There's the old joke: What's the difference between God and a federal district judge? Answer: God doesn't think he's a federal judge. Or a different version of that joke: An angel rushes to the head of the Heavenly Host and says, "We have a problem. God has delusions of grandeur." The head angel calmly replies, "What makes you say that?" The first angel whispers, "He's wearing his robe and keeps imagining he's a federal judge."
Well-managed trials, that tug on all of the right strings, can have a transformative effect on even the most sober-minded people. There is a reason effective trial lawyers can wrap juries around their fingers, and secure astronomical judgments. Indeed, there is a reason why sophisticated defense attorneys do everything in their power to keep cases away from juries. I don't think judges, when presiding over bench trials, are immune from this dynamic. Indeed, when district court judges afflicted by the god complex have unlimited remedial powers, they, like Judge Roth, can do just about anything.
One of my favorite Broadway musicals is Chicago. In the song Razzle Dazzle, defense attorney Billy Flynn, played by Richard Gere, explains how you can pull the wool over a jury's eyes and make them believe anything.
Give 'em the old razzle dazzle, razzle dazzle 'em
Give 'em an act with lots of flash in it
And the reaction will be passionate
Give 'em the old hocus-pocus, bead and feather 'em
How can they see with sequins in their eyes?
What if your hinges all are rusting?
What if, in fact, you're just disgusting?
Razzle dazzle them and they'll never catch wise
Civil rights attorneys have perfected the art of presenting their cases in the perfect sympathetic light. And the government can, at most, defend their work by pointing to pure partisanship or different standards or review.
Back to Judge Brown's decision. The Supreme Court's per curiam decision was fairly predictable. It should have been very clear to Judge Brown that his opinion "failed to honor the presumption of legislative good faith." And it should have been clearer that his opinion would not stand since the plaintiffs "did not produce a viable alternative map that met the State's avowedly partisan goals." Judge Brown's distinction--that a map was not needed at an interim stage--was never going to hold up. And it should have been crystal clear that Purcell would not allow this sort of relief in the middle of the primary process. But the mountains of evidence submitted by the plaintiffs let him look past those significant legal barriers.
Justice Kagan's dissent extols the length of the lower court proceedings:
The District Court conducted a nine-day hearing, involving the testimony of nearly two dozen witnesses and the introduction of thousands of exhibits. It sifted through the resulting factual record, spanning some 3,000 pages. It assessed the credibility of each of the witnesses it had seen and heard in the courtroom. And after considering all the evidence, it held that the answer was clear. Texas largely divided its citizens along racial lines to create its new pro-Republican House map, in violation of the Constitution's Fourteenth and Fifteenth Amendments. The court issued a 160-page opinion recounting in detail its factual findings.
Kagan stresses how the court even watched videos of legislators.
To do so, it held a nine-day hearing during which it heard from 23 witnesses, received into evidence thousands of exhibits, and watched many hours of video footage of legislators and Governor Abbott discussing the proposed map as it was under consideration. After assessing the credibility of the witnesses and weighing all the competing evidence, the District Court decided that the merits were "clearcut" in favor of the plaintiffs.
Justice Alito's concurrence explains that the length of the proceedings cannot excuse these legal errors:
Neither the duration of the District Court's hearing nor the length of its majority opinion provides an excuse for failing to apply the correct legal standards as set out clearly in our case law.
I would take it a step further: the longer these trials go on, and the more evidence presented, the more the brain's ability to discern reality falters. I seriously doubt that judges actually understand these sophisticated models. (There is a reason Rucho rejected the efficiency gap.) And I am skeptical that judges can seriously disentangle race and politics when members of minority groups (who all happen to be Democrats) talk about how the maps will impact their racial group. The plaintiffs lawyers are inviting the judges to become politico junkies, statisticians, and racial facilitators. None of these roles are well-suited for life-tenured judges.
Kagan faults the majority for disrespecting Judge Brown:
Today's order disrespects the work of a District Court that did everything one could ask to carry out its charge…
I mean no disrespect to Judge Brown. He was simply deciding a case in a construct that is inherently slanted to the civil rights plaintiffs--this is just another liberal asymmetry in the law. Brown is not alone. There have been a number of other Trump-appointed judges who have been persuaded by these sorts of voting rights claims. Moreover, in the litigation leading up to Skrmetti, three Trump appointees found that transgender laws were unconstitutional--a fact Chase Strangio pointed out in the interview with Ross Douthat.
I draw a different lesson. Callais should tie federal judges to the mast, and get them out of the business of being snookered by race trials. If the Court does not take this path in Callais, it should prepare for a steady stream of similar opinions like Judge Brown's. The liberal asymmetries should end: California can gerrymander to the left, and Texas can gerrymander to the right.
