Tuesday, April 09, 2019

Muslims, Buddhists, Equality, and Time

by Michael C. Dorf

In February, the Supreme Court reversed a decision of the Eleventh Circuit, which had stayed the execution of a Muslim inmate whose request for an imam to be by his side in the execution chamber in light of the fact that the Alabama prison regularly allows a Christian chaplain to accompany Christian inmates.  The vote was 5-4. In March, the Court granted a stay to a prisoner who sought the accompaniment of a Buddhist spiritual adviser in the death chamber, given that Texas allows Christian or Muslim spiritual advisers. The vote was (apparently)* 7-2. Chief Justice Roberts and Justices Alito and Kavanaugh voted against the Muslim inmate in February but (apparently)* for the Buddhist inmate in March. What explains the difference?

One possibility is religious bias. Maybe the justices who changed their votes like Buddhists but dislike Muslims. And maybe Justices Thomas and Gorsuch, who voted against both inmates, dislike both Buddhists and Muslims, while Justices Ginsburg, Breyer, Sotomayor, and Kagan like both. I have no reason to accuse any of the Justices of religious bias, however, and Kavanaugh's concurrence in the Buddhist case expressly condemns discrimination against any particular religion as inconsistent with the Court's precedents.

The only stated explanation for the switch comes in a footnote in Kavanaugh's concurrence in the Buddhist case. He says there: "Under all the circumstances of this case, I conclude that [the Buddhist prisoner] made his request to the State in a sufficiently timely manner, one month before the scheduled execution." In the Muslim prisoner's case, the Court cited the "last-minute" nature of the request--only ten days before the scheduled execution--as a reason for its action. However, as Justice Kagan explained in her dissent in that case, that was only five days after the Muslim inmate's request was denied.

It's possible that the justices who switched saw the timing issue in the two cases as very different. But it's hardly clear why they should have. Indeed, the juxtaposition of the two cases is especially puzzling given their respective procedural postures. Whenever the Supreme Court is asked to provide interim relief, the burden is on the party seeking a reversal of the lower court ruling. Yet the Court granted relief from a stay of execution to the state authorities in the Muslim case and overrode the lower court's denial of relief in the Buddhist case. Had the Court simply favored the status quo, it would have ruled in favor of the Muslim inmate and against the Buddhist inmate. The fact that it did the exact opposite suggests that the justices who flipped must have thought the Buddhist inmate's case was much stronger. And yet the timing difference does not seem to be very great.

Accordingly, I want to suggest a different explanation. A great many observers criticized the Court for its action in the Muslim case. They accused the justices of insensitivity at best and outright anti-Muslim bias at worst. Maybe the justices who switched were persuaded by the outcry and changed their minds. If so, they should be praised for doing so--even though the two cases taken together suggest a bias for Buddhists over Muslims.

But that very possibility raises a question: When, if ever, should equality principles lead one to follow the course of a past action or decision even though one now recognizes that the earlier action or decision was wrong?

That question is connected but not identical to the legal question of when a court should adhere to precedent. I'm interested in the intertemporal dimension of equality in many contexts, not just for judicial decision making. Courts have reasons other than or in addition to considerations of equality for adhering to precedent. Stare decisis protects reliance interests, facilitates planning, and generally serves rule-of-law values. These interests may justify adhering to precedent quite apart from any conclusion that changing course would deny equal treatment to the first party.

Let's begin with a mundane example. Suppose parents give their older of two children a 10 pm curfew when she is seventeen years old. The older child chafes under the curfew but abides by it. A few years later, the younger child turns seventeen. The younger child is neither more nor less mature than the older child was at the same age. That is, the children are similarly situated. Nonetheless, based on their experience with the older child, the parents conclude that an 11 pm curfew would be more appropriate, all things considered, than a 10 pm curfew. Would it be wrong--on equality grounds--to set an 11 pm curfew for the younger child?

To avoid confusing the issue, let's set aside the issue of remedy. By the time the younger child is seventeen, the older child has gone off to college, where she has no curfew. Thus, there is no way to retroactively give the precise benefit of the later curfew to the older child. Perhaps it's possible to remedy the equality violation by giving the older child some other kind of compensation. In that respect, this mundane example differs from the cases of the two inmates, because the Muslim inmate, having been executed already, cannot receive any sort of compensation. Perhaps his surviving family members might be compensated in some way, but various immunity doctrines mean they won't be, and even if they were to receive some form of compensation, that would be an imprecise and highly imperfect remedy.

To be sure, as a psychological matter, it's not always possible to set aside remedial questions completely. The difficulty of remedying an ostensible equality violation will tend to lead one to conclude that there is no equality violation in the first place. McCleskey v. Kemp is a good example. There was compelling statistical evidence of race discrimination in the Georgia death penalty. But Justice Powell, for the majority, worried that invalidating the Georgia death penalty on that ground would "throw[] into serious question the principles that underlie our entire criminal justice system." Rather than conclude that the death penalty and the criminal justice system were unconstitutional but that the judiciary could not provide an effective remedy, Powell concluded that there was no denial of equality after all, in an opinion that made some dubious statements about the nature of statistical evidence.

With the foregoing caveat, let's set aside remedies. When is the departure from an earlier precedent (in the broad sense) a denial of equality?

The length of time that has passed seems to matter. If literally no time has passed, i.e., if the decision maker simultaneously decides to treat two similarly situated individuals differently, then that's a clear violation of equality. At the other extreme, a very long period of intervening time diminishes the force of an equality argument. In colonial times and the early Republic, the penalty for most felonies was death. Suppose a state with a death penalty is considering abolishing it. Surely we would not say that to do so would be to deny equal treatment to the people who were executed in prior centuries. It's not so much that those long-ago-executed people are dissimilarly situated, so much as it is that they are improper comparators. Equality of treatment requires rough simultaneity.

But does it require precise simultaneity? Suppose that on Monday a teacher gives Billy detention for talking out of turn but by Tuesday has concluded that the penalty was unduly harsh and so gives Sally a mere stern look for the same conduct. Has the teacher treated the students unequally? Well sure in the trivial sense that the teacher has treated them differently. The question is whether the all-things-considered mistaken judgment regarding Bill counts as any kind of a reason to treat Sally equally (and equally wrongly) too harshly.

My tentative intuition is that while Billy will rightly feel that he was treated unfairly when he sees Sally getting the lesser sanction, equality should have little pull here, so long as the teacher is quite confident that the decision to give Billy detention was mistaken. It's not just that giving Sally a harsher punishment than she deserves does not help Billy; that's often true of "leveling down" remedies for equality violations; the point is that equality should have no real pull in this situation.

There are, however, special circumstances in which close-but-not-exactly-simultaneous-in-time events give rise to an equality obligation. Suppose a baseball umpire realizes at the conclusion of the first half-inning of play that he has been calling some pitches on one corner of the plate balls when he should have called them strikes, because a one-inch-thick line of dirt had obscured the plate's edge. Given the imperative of competitive fairness, I would think that the umpire has an obligation to use the same artificially truncated strike zone in the bottom of the first inning as well. But I think cases of this sort are somewhat special, not least because a baseball game is zero sum.

Another way of putting the point may be that while I disagree with the argument -- most forcefully made by Robert Nozick in Anarchy, State, and Utopia -- that inequality in itself is not a harm to those who get the short end of the stick -- I do think that argument has some force once the first decision has been made. Perhaps a different way to put that point is that once one has made a decision regarding A that one now thinks wrong, equality is not a reason to repeat the mistake with respect to B, because B is situated differently from A. The decision with respect to B occurs after a crucial intervening change: the realization that the decision with respect to A was mistaken.


* In the original version of this post, after noting that the vote in the Buddhist prisoner case was 7-2, I said that Roberts and Kavanaugh flipped. But if I was right that it was 7-2, then Alito also must have flipped as well. Meanwhile, however, it turns out that I can't be sure whether Roberts and/or Alito flipped. The order includes a short concurrence in the judgment by Kavanaugh, so we know that he and (we can certainly assume) the Democratic appointees voted for the Buddhist inmate's claim. The order also states that Justices Thomas and Gorsuch would deny the application. I had assumed that this meant that all of the other justices voted for it, but, as a commenter correctly noted, that's not necessarily true. I apologize for the initial sloppiness and thank the commenter for calling the issue to my attention.


Joe said...
This comment has been removed by the author.
Shag from Brookline said...

Since the Court is the final word, a Justice may express what seems to be cruel and abusive in their opinions. As to religious biases of Justices, "Gimme that old time religion ..." comes to mind. Note Texas' response in considering barring all clergy from the execution chamber. Might this violate the "free exercise" clause of the 1st A?

But are parents and baseball umpires bound by the same rules as Justices?

Joe said...

I have seen repeated reference to a "7-2" vote in the second case & that is basically how I see it. But, Roberts and Alito didn't actually express their votes on the record. One Supreme Court reporter once told me I could not assume those who are silent voted with a per curiam. The Slate commentary noted: "Chief Justice John Roberts and Justice Samuel Alito did not note their votes, so it is unclear if they agreed to halt the execution or dissented silently."

But, I guess that even law professors basically assume 7-2 here? Is it because two justices explicitly dissented? Do we assume a no recorded dissents in some last minute death penalty order means it was 9-0?


In the latest lethal injection case, discussed in an earlier essay, there was a section (joined by five justices) that argued that the Muslim inmate's challenge was not timely. We were not told why the other one was, which is a bit curious since one theme of the opinion (addressed by both Breyer and Sotomayor in their own way) was alleged gaming of the system in capital litigation, including last minute orders. It would have been helpful if the opinion -- since it brought Dunn v. Ray up anyhow -- would have carefully discussed the difference.

As the basic concern of the essay, yes, two wrongs do not make a right in this sort of case. Here, at least one justice probably admitted a mistake was made, at least silently. I do agree that for more trivial matters at least, there is some equity in being equally wrong. "Make-up" calls also at times probably occur in baseball games (umpire misses a call and then gives one to the pitcher or batter). This probably also applies in child-rearing or the like. Even if you admit you are wrong, it's probably a good idea to be consistent when treating two children close together. This also might even be legitimate for minor cases in other contexts such two students being disciplined for some minor infraction.

Significant lag time probably changes that (plus with curfews and the like, often the two aren't completely equal anyhow).

(As to Shag's comment, Roberts is an umpire, I'm told. A dissent in a recent court of appeals case even quoted his famous line on the subject though she might have been a tad sarcastic in so doing.)

Joe said...

Might this violate the "free exercise" clause of the 1st A?

A conservative religious group that wrote a brief in support of the Buddhist inmate was quoted in a news article in effect saying "yes, it does," since there is not a strong enough reason not to allow them inside. And, since federal law has special concern for the religious liberty of inmates, he has that added protection. OTOH, Kagan and Kavanaugh in their opinions addressed equal protection concerns. Perhaps, free exercise will be addressed more later.

Asher Steinberg said...

The Bucklew opinion, which Roberts and Kavanaugh joined in full, defends Ray's timeliness holding (or rationale) at considerable length. So if they changed their minds, they have a funny way of showing it.

Michael C. Dorf said...

I've made a correction regarding the lineup. Thanks Joe.

Meanwhile, I find fn 5 in Bucklew (and the associated text) less persuasive than Asher does. Bucklew confirms that the conservatives regard most death penalty litigation as stalling for time. But they could have seen the Buddhist prisoner's case that way too. The fact that they did not is the variable to be explained, not the fact that in other cases they continue to see death penalty litigation as a kind of stalling.

Shag from Brookline said...

Over at the Balkinization Blog I have been reading the commentators on its Symposium on Neal Devins and Lawrence Baum, "The Company They Keep" on the Justices. All of the commentators have responded. Now it's Devins and Baum's turn to respond. It's been interesting for me as I graduated from law school in 1954, the year that Brown v. Bd. of Educ. came down, unanimously. (Speaking of "stalling," consider how long that was since Reconstruction.) There was no Federalist Society back then and it preceded by a couple of decades the originalism movement, which, was joined by the Federalist Society, in their concerns with the judicial activism primarily of the Warren Court, whose foundational decision was Brown. Balkin and Levinson in their commentaries make significant references to both originalism and the Federalist Society in leading to the Court's polarization over the past two decades. I wonder if current conservative/libertarian members of the Federalist Society recognize how Brown might just a tad have contributed to the original and perhaps continuing views of the Federalist Society regarding Brown. After Roe v. Wade, might the Society focus on Brown?

Asher Steinberg said...

I don't mean to take a position on the persuasiveness of footnote 5; what I do mean to take a position on is your claim that "[m]aybe the Justices who switched were persuaded by the outcry and changed their minds" about their decision in Ray. That seemed a plausible enough theory of what happened in Murphy until Bucklew came out, but in Bucklew, those two justices joined an opinion that goes out of its way to defend Ray on timeliness. Why they see Murphy's claims as timely, given that the mixed Fifth Circuit panel below unanimously found them less timely than Ray's, even on the Ray dissent's theory of timeliness, is indeed a mystery that needs explaining, but one that just seems hard to explain by recourse to a supposed change of heart about Ray given their joining an opinion post-Murphy that vocally defends Ray.