Friday, September 24, 2010

Grave(s) scrutiny

Justice Graves's nomination to the 5th Circuit (insert allusion to Caligula's horse) draws the attention of Eugene Volokh:
Here’s the issue: In 2004, 2008, and 2009, the Mississippi Supreme Court considered whether state judges should be disciplined for their out-of-court statements that express hostility to particular groups. The key question in each case was whether the judges’ speech was protected by the First Amendment.

In 2004, Justice Graves took the view that a judge was not constitutionally protected against being disciplined for saying (in a letter to the editor of a local newspaper, and in a radio interview) that “gays and lesbians should be put in some type of mental institute.”

In 2008, Justice Graves also took the view that a judge was not constitutionally protected against being disciplined for saying (at a judicial seminar) that “African-Americans in Hinds County [where the judge was serving] can go to hell for all I care.”

But in 2009, Justice Graves took the view that a judge was indeed constitutionally protected against being disciplined for saying (in a speech to a political organiation) that “White folks don’t praise you unless you’re a damn fool,” and “If you have your own mind and know what you’re doing, they [white folks] don’t want you around.”

This particular mix of results strikes me as hard to defend under the First Amendment. Those results of course could be defended by some people on the grounds that the first two statements (in those people’s view) were wrong or unjustifiable, and the third statement was right or justifiable. Such a defense, though, would not be consistent with First Amendment law, under which the constitutional rules cannot turn on whether a reviewing judge agrees with the speech at issue.

But of course I might well be missing some other sensible defense, so I hope the Committee asks Justice Graves: What is the basis for the conclusions you reached, and in particular for the conclusion that speech hostile to gays is constitutionally unprotected against judicial discipline, but speech hostile to whites is constitutionally protected? (As I’ll note below, the 2008 incident involving speech hostile to blacks might be distinguished on other grounds, which is why I primarily focus on the 2004 and 2009 incidents.)
More details at Volokh's post.

... Will Bardwell takes issue with EV's post:
Judges Wilkerson and Boland, to whom Justice Graves ascribed no First Amendment protection, made their statements rather spontaneously and altogether outside the sphere of political campaigns. But Judge Osborne, to whose speech Justice Graves would have granted First Amendment protection, made his remarks before the Greenwood Voters League -- and, I believe, in an election year to boot.
"Electoral" speech by judicial candidates is protected by the First Amendment under Republican Party of Minn. v. White, so that is the relevant distinction, says Bardwell.

... And NMC joins the discussion:
I suspect Will is right that this is at least a try-out of an attack on Justice Graves’s nomination, and I agree with his rejection of the insinuating tone of Volokh’s post. But I’m not really buying that a letter to the editor about an issue of public debate is a “spontaneous” pronouncement clearly distinct from a speech at a political gathering. I don’t see how one can avoid saying they are both protected, or can say one is and one isn’t.


  1. To reiterate, I disagree with that narrow reading of White, if that is indeed Justice Graves' view of the case (hard to say, since he didn't write in any of these cases). But it's certainly a reasonable view and the most plausible basis for distinguishing his votes.

    And not to go all Charles Pickering on this thing, but anyone who knows Justice Graves knows that he's about as racist as Mother Teresa. I mean, c'mon...

  2. I just read through the comment thread at Volokh--


    and see the valiant effort by both of you to talk sense, but it's not getting through. I hope comment threads in my blog don't have this failing-- but the ones on Volokh seem all about people digging farther and farther into their pre-set views.

    And you know what? This is karma: I have little doubt that Justice Graves could say in a couple of sentences what he was thinking. He may be wrong, he may have a lousy explanation, but it will be arguable, I'd assume. If he'd made any attempt to make that explanation--


    -- the debate would be dramatically different, I think. Volokh's position depends on those unstated reasons. If reasons were stated that weren't utterly incoherent, this would be a different situation. Or, at least, it would be easier to make Will's point that Volokh's insinuation is not honest.

  3. I have little doubt that Justice Graves could say in a couple of sentences what he was thinking

    I do not completely share your confidence. The whole benefit of "opines in part without written opinion" is that it spares one the trouble to think.

  4. ... That would be a nice-sounding campaign pledge: "I promise that, as a justice on the MSSC, I will never fail to explain my vote."

    Most voters are unaware that anyone concurs/dissents "in part" without explaining *what* part, and I'm pretty sure that if they were made aware of it, they wouldn't like it.

  5. Since you disagreed with me, Anderson, I suppose I don't get to say "I agree completely," but I pretty much do-- here's what I wrote in my own post:

    There is a direct virtue to a judge's explaining their vote beyond telling the public and the parties: Expressing aloud what one thinks is a great way of testing whether one is right. I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.

  6. Well, allow me to agree completely with your self-quotation.

    I just do not have a high opinion of Graves as a jurist, and only the relative advantage of having him off the MSSC makes up for his elevation to the 5th Circuit.