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Ivory towers; 500 Milestone

Back in March of 2001, Victor Harris got into a car chase with the cops.  After they'd pursued him for ten miles (and to give you an idea of the speed involved, this took only six minutes), one of the officers rammed Harris' car, causing him to lose control; the car ran down an embankment and overturned.

The crash left Harris a quadriplegic, so he did what any red-blooded American would do:  he sued, arguing that the ramming of his car constituted "excessive force" under the Fourth Amendment and was thus a violation of his civil rights.  The district judge tossed it on summary judgment, but the Fourth Circuit reversed, holding that there was a genuine dispute of fact as to whether the force was necessary. 

Ah, the marvels of techology!  Turns out that one of the officers had a video camera in his car, and captured the entire chase.  When everybody trundled off to the Supreme Court to argue the case, Harris' lawyer was met with a barrage of questions by virtually every justice, the upshot being that no one in his right mind could come to any other conclusion but that Harris' driving created a substantial risk of injury to every other driver, and anything done to get him off the road was necessary.  Well, no one in his right mind except for Justice Stevens, who was the only one of the Justices who dissented from the reversal of the Fourth Circuit's decision.  Justice Scalia, who headed the majority, even helpfully included a cite to the video in his opinion.  (You can find the video here; RealPlayer is required.)

Enter Professors Kahan, Hoffman, and Braman, who've prepared an article on the case for the Harvard Law Review.  (The abstract is here, and the whole article can be downloaded from that site.)  The profs explain:

We showed the video to a diverse sample of 1,350 Americans. Overall a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities.

The authors then argue that while the result of the case might be defensible,

the Court's reasoning was not. Its insistence that there was only one reasonable view of facts itself displayed a characteristic of a form of bias - cognitive illiberalism - that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law's legitimacy.

I think that could be better, and more simply, put:  judges tend to have biases that do not reflect the broad cross-sections of society, because judges, by and large, do not come from the broad cross-sections of society.  Most come from the upper strata, and reflect those sentiments.  Over time, especially at the appellate level -- because that is where the law is enunciated -- the law begins to reflect those sentiments, too. 

Clarence Thomas is perhaps the only Supreme Court Justice who came from a hard-scrabble background.  For the most part, to put it delicately, his opinions don't reflect that background, but there was one glaring exception to that:  Virginia v. Black, which upheld the constitutionality of Virginia's prohibition of cross-burning.  The First Amendment problems with such a statute are obvious, and the Court had in fact struck down a similar Wisconsin law about ten years before.  But during oral argument on the case, Justice Thomas, in one of his rare forays that arena, forcefully made the point that the history of cross-burning in this country made it "unlike any symbol in our society."

It's doubtful that any of the other Justices could have made that point as forcefully as Thomas did.  That's something to keep in mind the next time the subject comes up of whether it's appropriate to have a "black justice" or a "woman justice" on the Supreme Court.  There is value in diversity, especially in the law, which in a free country depends to a large extent on the acceptance of its legitimacy by the people.  If the people begin to lose faith that the law refelcts their beliefs, the legitimacy is eventually undermined.


On another note, this is the 500th post since the first one appeared back in May of 2006.  For those of you who've found this site helpful and, hopefully, entertaining, my thanks.


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