Friday, March 16, 2007

Raich, Pregerson & Prediction

Yesterday I presented a couple of papers at the Georgetown Constitutional Theory colloquium (or whatever they call it exactly). One of the papers I distributed as background included substantial discussion of the Raich case in the Supreme Court. As it happened, one of my hosts was Randy Barnett, who argued the case in the Supreme Court and in the Ninth Circuit, and so naturally our discussion turned at some point to Wednesday’s Ninth Circuit ruling, about which I posted yesterday. We were puzzling over why Judge Pregerson insisted on reading Glucksberg’s requirement that courts begin substantive due process cases with a “careful” description of the right as meaning that the right should be described “narrowly.”

My first cut was straightforward: That’s more or less what Rehnquist meant by “careful” as he used the term in Glucksberg. I worked with the plaintiffs in that case and we took great pains to make clear that we were not asking the Court to recognize a right to suicide, but instead a right of a terminally ill patient to control the timing and circumstances of his or her death. Nonetheless, Rehnquist framed the case as seeking a right to suicide that includes a right to physician assistance. Once framed that way, the case was effectively over, and so Judge Pregerson could have plausibly read Glucksberg as requiring rights to be framed in a way that defeats them. (Note that I say “in a way that defeats them” rather than “narrowly” because the Glucksberg Court actually framed the right more broadly than we wanted or asked it to.)

But then, to repeat the question I asked yesterday, why did Judge Pregerson not also consider that in Lawrence the Supreme Court did not re-frame the issue in a way that undermined the plaintiffs’ claims? Instead of characterizing that case as involving, for example, a general right to sexual liberty (likely too broad to win approval) or a right to have same-sex anal sex (likely too narrow to win approval), Justice Kennedy accepted the plaintiffs’ framing of a right of intimate association that includes control over adult consensual sexual acts. The Lawrence opinion doesn’t exactly say that there is such a right, because it’s unclear what level of scrutiny the Court applies, but it also doesn’t adopt the Glucksberg framing. So what gives with Pregerson?

Professor Barnett suggested that Pregerson accepted the Glucksberg approach because he, Pregerson, was predicting that if the case made it up to the Supreme Court, there would be five votes for using that approach---at least in a case involving medical marijuana. And, Barnett said, that’s probably a good prediction in light of the questions Justice Kennedy asked during the oral argument in Raich, which were quite hostile to the plaintiffs’ arguments.

For me, this raises the question of whether a lower court judge should base his ruling in an area of uncertainty on his prediction of how individual Justices currently on the Court would vote, rather than his own best judgment about what the law is or should be. The Supreme Court decision in Raich 1 was not, after all, a holding on the substantive due process issue, and so nothing in that case bound the 9th Circuit in in Raich 2. My own view, which I argued at some length in a 1995 article in the UCLA Law Review, is that except in a few unusual circumstances, the job of lower court judges is to make their best legal judgment, not to predict the legal judgment of those who may end up reversing them. Here, I’ll just reproduce the barest core of the argument: "The prediction [approach] undermines the ideal of the impartial judge. It conceptualizes a high court as the sum total of the views of the individual judges. By contrast, the ideal of impartiality requires that judges attempt to separate their individual views from the requirements of the law. Thus, even if the high court judges are persons of impeccable character, the prediction model undermines the ideal of impartiality by equating particular high court judges' views with the law."


egarber said...

Randy Barnett. Is he the overall author of "Rights Retained by the People", about the ninth amendment? IMO, that's a very good philosophical read -- gotta be the most exhaustive collection of essays about that "inkblot". I may be wrong, but I think he has also pushed for a broader "presumption of liberty" standard in many of these cases.

To your point about the lower courts, even *I* (no lawyer, mind you) know that one of the intended benefits of our system is diversity of opinion at the lower level. The idea is that the circuit courts do their best to interpret law and precedent, giving the Supreme Court many viewpoints from which to ultimately settle questions.

Otherwise, you have something closer to a "unitary judiciary" (not sure if that makes sense), but you know what I mean.

Aaeamdar said...

*To your point about the lower courts, even *I* (no lawyer, mind you) know that one of the intended benefits of our system is diversity of opinion at the lower level.*

I am not sure I see how diversity of opinion at the lower court level is a benefit, much less an intended one. Instead, I would suggest such diversity is a recognized flaw that the hiarchial structure of our judiciary attempts to remedy.

To suggest it as a virtue of our system in turn suggests that it is good that cases be decided not by legal correctness but instead at best by chance or at worst by those most skilled in manipulating themselves to appear before judges favorable to their views.

egarber said...


I see your point, but you seem to presume that there is a static answer for what “legal correctness” even is.

Depending on constitutional philosophy and viewpoint, it’s clearly possible for jurists to reach different outcomes in a given case. This is reflected in Mike’s post – the court ignoring Lawrence while relying on another precedent.

In some ways, it’s a little like our system of federalism (imo), where states approach problems differently. (I do acknowledge that this is a fairly clumsy comparison though, since politics is wide open and law not so).

However, as long as the Supreme Court is the final body, I do think it’s a benefit to have a sort-of working laboratory below.

In fact, I think your fear of “manipulation” might be MORE SO realized under a reality where the lower courts simply try to guess which precedent the Supremes will care about. After all, in that scenario, “those most skilled in manipulating themselves to appear before judges” would only have to worry about appearances before the Supreme Court – i.e., whichever way the High Court goes, it will trickle down.

With the “diversity” angle, lawyers have to compete from the ground up, I think.

Aaeamdar said...

I think you are conflating fact with the ideal. That is, you have recognized the fact that reasonble people can and will disagree and transformed that axiom into a virtue.

The function of the lower courts is not to tinker with legal theories to see which truths best serve our society. If that is a judicial function at all, it rests in the Supreme Court. "Legal correctness" can remain a fluid concept without relying upon lower courts to provide that fluidity in some sort of, as you call it, working laboratory. The universities and associated scholarly journals provide a better such laboratorty for exploring legal theories.

This does not mean that the lower courts should be trying to guess the reasoning of the SC; they should be interpretting the law as best they can and as guided by the appellate courts. Of course, this still means different and reasonable lower court judges will reach different opinions on the same issue. That is reality. It is, however, not an intended benefit of the system.

egarber said...

"I think you are conflating fact with the ideal. That is, you have recognized the fact that reasonble people can and will disagree and transformed that axiom into a virtue."

I'm not quite making that point, I don't think. The core point is that legal thinking among separate and independent circuits creates a large knowledge pool for the Supreme Court to tap before making the ultimate decision in cases.

Lex Aquila said...

Agreed with Prof. Dorf that by "careful" the Chief more or less meant to narrowly define the right. However, as Prof. Dorf also noted, in Glucksberg he gives the right sought a more generalized gloss, and thereby defines away the likelihood of success.

Would not a computer be better suited to predict the outcomes of cases and votes of individual justices whenever this is supposedly the role a lower court judge? And agree with egarber that a "unitary judiciary" was never sought after or intended. Indeed, the growth and changes in the judicial branch over time have been towards an even more decentralized judiciary.

Sobek said...

Not exactly on topic, but I'd just like to say, as one of the few conservative Republicans around here, that Gonzales v. Raich was a total piece of crap.

I'll also say I think the Ninth Circuit was unduly circumspect in declining to give Raich her necessity defense. They gave lip service to the fact that a person can be substantially injured simply by virtue of an arrest without a conviction, but they didn't follow it through to a logical conclusion. It's not just a matter of inconvenience and indignity to get thrown in jail -- if she is arrested, I can't imagine she'll have continuing access to her marijuana, and therefore she faces serious medical debility and possibly death. If that's not a good case to prospectively enjoin enforcement -- reserving the right to review in the event of an improbable medical breakthrough or miraculous healing -- I don't know what it.

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