Just Books
justice
08/06/10
Thirty years ago, a drunk driver killed my brother. I’ve been thinking about the homicidal driver ever since. Then, I found him on the Internet…
By Beth Greenfield
This past year, I wrote and published a book, Ten Minutes from Home, about how my family was affected by the drunk driving accident that killed my brother and my best friend nearly thirty years ago. While working on it, I began to wonder about what had happened to the man who hit us.
All I knew about him was that his name was Edward Pahule, that he was a Milwaukee native stationed at a Jersey Shore naval base, and that he was on a liquor-fueled bender on the June night my family and I happened to be heading home from my yearly ballet recital. When he hit us, he took the lives of my brother, who was 7, and my best friend, who was 13 — just a year older than me.
I found Edward Pahule quickly on the Internet. And I learned that he is back in Wisconsin, and that he is a blogger. I even found a photo of him—a tiny headshot, in which he looks like a normal-enough guy, with a graying beard and wire-framed glasses and a mellow smile—and I stared into his eyes for a while, conscious that I was, at last, looking into the face of Adam’s killer.
I used to fantasize about looking him in the eye.
Edward Pahule got off easy. He was sentenced to just six months in jail. This was New Jersey, 1982—the highest-record year for alcohol-related car fatalities in the state, and a low point for drunk driving laws and penalties. It was an irony that filled my grief-stricken father with a burning anger, and he set out to find ways to right our wrong.
“We’re just going to put those scumbags away!” he would report after returning home from frequent meetings of the New Jersey Task Force on Drunk Driving. He joined the group shortly after being released from his post-accident hospital stay, during which he’d recovered from a punctured lung, a broken shoulder and a bruised heart. “They want to suck down the booze and then get in their cars? Fine. No problem. We’ll let ’em rot in jail, that’s all.”
My mother, though, was not interested. “Is that going to bring him back?” she would shout, stone-faced, at my father who would sigh and look at the floor. “Then I don’t want to hear it!” She had no use for any form of revenge or justice, from what I could see, because none of it could make our family whole again.
My own thoughts on the subject hovered somewhere in between my parents’ two extremes. Mostly I didn’t think about blame or punishment, as I, too, saw it as useless—unable to make me a big sister to Adam or best friend to Kristin again. But I would sometimes think about meeting the drunk driver face to face. I would watch those early-’80s TV talk shows as they brought together sobbing, chest-thumping survivors with the killers of their children or parents or lovers, and something in me would long to be a part of the action—to walk onto Phil Donahue’s set and stand before Edward Pahule so he could crumple and apologize with the world watching.
Later, when I was in high school and working a part-time job in a clothing store at the mall, I would have distracting daydreams in which I would take someone’s credit card for a sale, look down at the raised-plastic cardholder’s name and see that it read EDWARD PAHULE. Some days I would think that every card handed to me would definitely be his—even if the purchaser was a woman, which it almost always was—and I would shake with anticipation and will myself not to read the name on the card until the moment before I handed it back so I could ready myself for an appropriately fired-up response. But what would I have possibly said? I had no idea. I just thought that making him see me would stir something in him and make him truly regretful.
My father’s brand of justice never appealed to me. In high school, when I learned that a few of my friends were banding together to form a chapter of SADD, I was horrified—self-conscious and guilty that I wasn’t involved. But I just couldn’t do it. I couldn’t risk sitting in a classroom after the final bell of the day had rung, hanging out with this handful of well-meaning peers and trying to look like anyone else, like a normal student who just happened to choose SADD as an extra-curricular activity, the same way I might’ve chosen debate club or field hockey or chess.
Eventually I’d head off to college—a private liberal-arts school in Connecticut—and it quickly dawned on me that I was among spoiled rich kids, and so I asked my parents, a pair of teachers, how we were able to afford such an education. “Money from the accident,” my father blurted out. It made me sick to know it, that we’d gotten money out of the deal, and that I was going to school with it. It didn’t only feel unjust, but rotten, and cheap. But it was the way of the legal system; money for the victims and jail time for the offenders was pretty much all it had to offer—and neither one, as far as I was concerned, could offer anything that worked to take the edge off grief.
All these years later, I haven’t thought much more than I had as a teen about seeking justice for what our family went through. The idea of more jail time for the man who hit us sounds like it would have been a good idea, but even if he was still locked up to this day, I know that fact alone wouldn’t have eased my years of grief and healing.
Beth Greenfield, is the author of Ten Minutes From Home.
Tags: Beth Greenfield, justice, Summary Judgment
08/06/10
Atticus Finch, America's most beloved lawyer -- and father, is as inspired as ever.
by Austin Sarat
“You know something, Mr. Cunningham, entailments are bad.”
Scout in To Kill a Mockingbird
To Kill a Mockingbird turns 50 this year, and 2012 will mark the 50th anniversary of the release of the film version. The novel won a Pulitzer Prize in 1960 and, in 2003, the American Film Institute named Atticus Finch the greatest movie hero of the 20th century. While it is fair to say that both novel and film have become staples of American cultural life, as they turn 50, we should ask: is theirs a legacy we should celebrate?
Set in a southern town during the Depression, its central character, Atticus Finch, an iconic citizen-lawyer, is called on to defend an African-American accused of raping a white woman. At the time of its 
release, readers and viewers of To Kill a Mockingbird were located in the era between Brown v. Board of Education and the passage of the 1964 Civil Rights Act. As the controversy over the recent firing of US Department of Agriculture employee Shirley Sherrod highlighted, the quest for racial justice that Atticus pursued by no means has been fully vindicated.
Although Atticus is sometimes criticized for being too accommodating to the segregated world in which he lived and practiced law, he remains popular culture’s most important embodiment of lawyerly virtue. As law professor Steven Lubet recently observed, “Lawyers are greedy. What about Atticus Finch? Lawyers only serve the rich. Not Atticus Finch. Professionalism is a lost ideal. Remember Atticus Finch....Atticus serves as the ultimate lawyer. His potential justifies all of our failings and imperfections. Be not too hard on lawyers, for when we are at our best we can give you an Atticus Finch.”
However, To Kill a Mockingbird is of enduring value not just because it is a lawyer’s story, but also because it is a story of fatherhood and of fatherhood’s complex associations with the law. Told as Scout’s memory of her father (Atticus), her brother (Jem), and the town where she grew up, her tale of Atticus is highly idealized. As Scout puts it, “There just didn’t seem to be anyone or anything that Atticus couldn’t explain.” While many attend to Atticus the lawyer, Scout calls on us to attend to Atticus the father as well.
Indeed, legal scholars, since Freud, have called attention to the complex associations of paternity and legality. They have portrayed a deep-seated longing for paternal power and the overwhelming power that fathers exercise as basic to legal authority. One of the most famous of these formulations is found in Jerome Frank’s early 20th century classic, Law and the Modern Mind. There Frank suggested that law is a projection of a widely shared human need for certainty and security in a world of danger, and he offered a view of law as the father or, more precisely, as the father-substitute. “To the child,” Frank argued, “the father is the Infallible Judge, the Maker of definite rules of conduct. He knows precisely what is right and what is wrong and...sits in judgment and punishes misdeeds. The Law....inevitably becomes a partial substitute for the Father-as-Infallible-Judge....”
To Kill a Mockingbird shares with many mid- to late-twentieth century novels and films an interest in exploring the connections between law and fatherhood that Frank noted, offering readers and viewers a chance to consider what fatherhood can reveal about law and law about fatherhood. On its 50th anniversary we are again reminded of the role that fathers and fatherhood play in cultural imaginings of law and in exemplifying the various faces of law’s power. Atticus Finch is a father and a lawyer committed to a particular vision of both fatherhood and law --one in which both can transcend, if not transform, the context in which they exist, one in which an orientation toward the future takes precedence over controlling the present, one in which the temporal horizon of law and fatherhood is kept firmly in view. In Atticus, law and fatherhood are both powerful and yet limited in their power, both existing in the present but oriented toward an as yet unrealized future.
To Kill a Mockingbird offers our era a view of law and fatherhood quite different from Jerome Frank’s imagining. Atticus Finch and the legal commitments he exemplified are focused on becoming as much as on being, and on the quest for racial justice as a lived experience for his children. Atticus as father/lawyer is a bridge between past and future. The past weighs heavily on Atticus, even as he tries to point his children toward a better future. What Scout calls “bad” entailments are legacies against which Atticus sets himself, the legacies of racism, race privilege, and violence, which in the mid-twentieth century American south remained powerfully in place.
In setting himself against those legacies, the father offers his children an example, a different way of being in the world, a model of adult values and sensibilities that oppose racism and racial stereotyping of the kind that showed their ugly face in the Shirley Sherrod incident. His example is as relevant in today’s supposedly post-racial era as it was in the heyday of the Civil Rights movement. It is worth celebrating as To Kill A Mockingbird’s turns 50.
Austin Sarat is William Nelson Cromwell professor of Jurisprudence and Political Science at Amherst College and the editor of Law and the Stranger (The Amherst Series in Law, Jurisprudence, and Social Thought).
Tags: Austin Sarat, fiction, JB, justice
08/05/10
by Laurence Tribe
My long life in the relatively quiet groves of academe, in the tree-lined streets of Cambridge, Massachusetts, was a calm one compared to life inside the Beltway. The perspective from that privileged perch was shattered when I began to see the broader view from inside the Justice Department, a view that reaches into every nook and cranny of our country. In my new job as Senior Counselor for Access to Justice, I have come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment.
Only five months into the job, I still view with awe the sign over the door to my office that reads, “Access to Justice.” More than a few folks who have come to visit have paused to have their pictures taken – not with me, mind you, but with that sign. But even after these few months, my staff and I already sense the danger of unrealistic expectations. We worry, as do many expert observers, that the system is too badly broken in too many ways to be susceptible to any “quick fix,” our state and federal budgets too strained to provide the resources so desperately needed, injustice too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent. Or is it?
Ours is supposed to be a system that levels the playing field by meting out justice without regard to wealth or class or race, a system that lives up to the promise emblazoned in marble on our Supreme Court, “EQUAL JUSTICE UNDER LAW.” But as we know all too well, far too many of our citizens find instead a system in which the deck is stacked in favor of those who already have the most: in favor of the wealthy and against those already disadvantaged or victimized by the more powerful. There’s no reason to mince words: Not only the poor but members of the shrinking middle class find a system that is confusing, difficult to navigate, challenging to the point of inaccessibility for anybody who can’t afford the best lawyers, and ridiculously expensive for those in a position to pay the going rate.
Consider the Burger family in Michigan, a state that permits non-judicial foreclosure. The Burgers bought a four-bedroom bungalow in 1997 for just under $39,000. In January 2009, they inadvertently sent a money order that was 7 cents short of what they owed, and they were late making February’s payment as well. They caught up by April, which was amazing considering that they lost their 10-month-old daughter in a household accident that same month. According to the family, the bank sought to foreclose anyway, giving them a choice: Pay $8,390 to reinstate the mortgage or lose their home. The Burgers didn’t have the money, couldn’t afford a lawyer, and given Michigan’s laws weren’t afforded any court intervention or oversight, so they lost the only house that their four living children, all 12 years old and younger, had ever known.
But the unredeemed imbalance of power and wealth are not the only viruses infecting our legal system. Equally detrimental, though less visible, is the hydra-headed monster of too many people to be served effectively and – for lack of a better word to describe it – the punitive urge, an appetite for imprisonment that ignores the veritable mountain of evidence which shows that alternatives to incarceration are often more effective at reducing recidivism--while also less costly. All too often, the systems that rely on lengthy incarceration as the only available criminal sanction suffer from crushing caseloads and an inability or, I hate to say, unwillingness to provide the legal assistance needed to provide meaningful, adequate defense. Though neither of these forces necessarily originates from any ill intent, their combination creates waste, havoc, and confusion and leaves the system weakened and the participants on both sides of the bench disillusioned and discouraged.
Nobody who works within the legal system enjoys confronting these problems – they cast a dark shadow over a system in which we deeply believe and to which we have devoted our careers. But confront them we must if we are to combat them and redress their pernicious effects. More than 95 percent of all cases in this country are filed in state courts. Just to put things into perspective, it helps to recall that slightly under 280,000 civil cases of all kinds were commenced in federal district courts in 2007 – compared to nearly 18 million civil cases in the courts of our 50 states. The federal system saw over 66,000 new criminal cases filed in 2007, a substantial number to be sure, but nowhere near the 21 million plus that originated in state courts.
In the face of this staggering burden, the problems facing our state judicial systems can only be described as deplorable. The court systems in 28 states had hiring freezes in FY 2010, 13 states froze court staff salaries, six states mandated court furloughs, six states closed courtrooms – one day each month for all California courts. Los Angeles County alone has lost over $130 million of its court budget, and hundreds and even thousands of court employees are being laid off from California to Florida to New Hampshire. And judicial pay, adjusted for inflation, has fallen nearly 24 percent over the past 40 years while the average U.S. worker’s wages have risen nearly 18 percent.
Because of bulging criminal dockets and huge pro se backlogs, all made worse by the faltering economy, it’s becoming increasingly difficult for business litigants and others who are embroiled in civil disputes ranging from consumer fraud to family matters to get courtrooms for trial or to have trials, especially jury trials, scheduled in a timely way – often, they wait years to get their day in court. It was Clause 40 of Magna Carta that proclaimed, "To no one will we sell, to no one will we refuse or delay, right or justice." Justice that must depend on the purse, or justice so long delayed that it is in essence denied, does not deserve the name.
For the privileged litigants who can afford it, the natural response to a denial of justice in the public courtrooms of our nation is to take their business to private judges and mediators, operating outside the watchful gaze of the public and beyond the effective reach of the rule of law. The harm that results from that private response is experienced as well in the public sphere, where adjudication conducted out of the public’s sight mystifies instead of educating, depriving democracy of one of its essential wellsprings, that of seeing justice done.
For those litigants who cannot afford that private alternative, the natural response to a denial of public justice is more troublesome still. They must either suffer in alienated silence or take the law into their own hands. Judy Norman, the North Carolina woman whose story and trial are studied by many first-year students in their criminal law courses, tragically exemplifies that response. For 25 years, Ms. Norman was psychologically and physically abused, beaten by her husband, and forced into prostitution. The state rebuffed her attempts to seek counseling and welfare benefits, and the police refused to take action unless she filed a formal complaint, which she was too afraid to do. Because she thought her husband was “invulnerable to the law,” she finally shot and killed him in his sleep.
The human rights activist Gary Haugen, founder and director of International Justice Mission, has documented the way in which wealthy and powerful elites in third world countries with dysfunctional public justice systems often circumvent those systems with workarounds that submit their controversies to private dispute resolution, leaving the poor, who of course can afford no such recourse, to depend on the clogged and at times corrupt public courts. That leads to a vicious cycle of cynicism and disaffection in which the system’s democratic legitimacy, the very foundation of its capacity to articulate and enforce the rule of law, disintegrates. And that in turn leads increasing numbers to flout the law, to resort to self-help, or to give up altogether, eroding the traditional claim of the judicial branch to a share of public resources sufficient to perform its mission with competence and integrity. In the meantime, the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial system afloat.
I hasten to add that this picture of what sometimes happens abroad stands in stark contrast to the judicial systems over which you preside. We have ample reason to be proud of the integrity and efficacy of American courts, both state and federal. But to say that is not to condone indifference to the early warnings of disintegration.
The magnitude of the problem tempts one to reach for sweeping solutions in some unifying vision of “access to justice” writ large, but the diverse and multifaceted character of the problem resists reduction to any grand and fully coherent theme conveniently captured in a simple slogan. Once one recognizes the perils of rigidly idealistic thinking – something that has from time to time plagued everyone in our “access to justice” office – one comes to a recognition that what is perhaps needed more than an inspiring but abstract and utopian call for a thousand-fold increase in funding is a series of tangible, achievable reforms that will make state courts better at what they do and more engaged in making law and legal remedies accessible to all.
Before I propose three sets of tangible, achievable reforms, let me address an overriding concern that many express with the very idea of active judicial leadership. It is that judges should be neutrals, not participants. They should be objective. They need to remain above the fray. People don’t agree on a definition of “judicial activism” but, in a riff on Potter Stewart’s definition of hard core pornography, they “know it when they see it.” And, if they affix that label to it, they know they don’t like it. But whatever one’s notion of impermissible approaches to judging, there is a basic and often ignored difference between judicial neutrality and judicial inactivity, between judicial objectivity and judicial passivity. Perhaps the greatest image we can conjure of a wise judge is that of Solomon. We all remember his creative pre-DNA-test solution to the problem of adjudicating the contested issue of maternity between two women making competing parental claims to the same infant. The wise king’s proposed solution, which he sprang on the women when he suggested splitting the baby in two while he watched the reactions of both claimants to motherhood, was the very essence of neutrality and objectivity. But it was hardly passive! It was as active as all get-out. Solomon’s wisdom sprang from making justice an active verb.
One inspiring example of the “good” judicial activism is taking place in Philadelphia, where a trial judge named Annette Rizzo launched an innovative mortgage mediation project. Judge Rizzo was initially asked by a particularly progressive sheriff to issue an area-wide moratorium on foreclosure sales, which were ravaging Philadelphia neighborhoods. Judge Rizzo, taking a leaf out of John Marshall’s book, declined to issue that specific relief – which would undoubtedly have garnered her the “bad” judicial activist label – and instead took the opportunity literally to restructure the foreclosure system in Philadelphia. She issued an order that no foreclosure sale could win judicial approval before the lender had at least entered into good-faith mediation with the homeowner, aided by a state-funded housing counselor. The mayor’s office got on board, the relevant stakeholders (including the lenders) offered input, and the program was off and running. My staff and I paid a visit to Judge Rizzo’s courtroom and witnessed the program, which has successfully kept hundreds of families in their homes and permitted many others to achieve more dignified and graceful exits than would otherwise have been possible.
Important reform efforts have also been initiated by state supreme court justices, as with the significant indigent defense reform effort spurred by the Nevada Supreme Court, which issued an order in 2008 calling for a completely state-funded Public Defender system and a permanent statewide commission on indigent defense. Although the Nevada reform effort is ongoing and there is still much work to be done, that state’s high court heroically chose to address systemic deficiencies in its system for fulfilling the obligation imposed by the Sixth Amendment under Gideon – and the promise of equal justice made by Gideon – without being asked to do so in a specific case. Of course, once asked to address the question of systemic deprivation of the protections that Gideon affords, it takes just as heroic a court to answer the call, as the New York Court of Appeals recently did under the visionary leadership of its Chief, Jonathan Lippman, in permitting the plaintiffs’ lawsuit to go forward in Hurrell-Harring v. State of New York.
I would urge every state’s highest court, led by every state’s chief justice, to establish an exploratory committee or task force with the goal of surveying the performance and evaluating the adequacy of the way your state is discharging its federal constitutional duty under Gideon. Judicial leadership of the sort shown in Nevada and New York and elsewhere is necessary if Gideon’s promise is to become more than what Robert Jackson once called a “promise to the ear to be broken to the hope, like a munificent bequest in a pauper’s will.”
Now, let me turn to the first of three areas of possible reform: juvenile justice. Let’s make sure that what happened in Luzerne County, Pennsylvania between 2003 and 2008 never happens again. As many readers know, here thousands of kids waived counsel and accepted pleas – in a system designed so that judges could receive kickbacks for placing children in a residential facility. The complaint alleged that none of the youth without counsel who appeared before a judge and pleaded guilty even had a colloquy about the waiver of counsel or about pleading guilty. They went to a hearing and in a matter of moments disappeared in shackles and handcuffs, for crimes as minor as stealing a four-ounce jar of nutmeg. Now of course the Pennsylvania Supreme Court vacated some 6,500 adjudications and consent decrees, expunged the convictions, and dismissed all cases with prejudice.
The primary goal of the juveniles and their attorneys in Luzerne County was relief in their individual cases, but state court judges can decide to use the lessons from that case to institute systemic change, just as Annette Rizzo took it upon herself to do in Philadelphia.
When we were juveniles, there was an ethos that everyone was out to help the kids, so issues like waiver of counsel weren’t really important. Today, confronted with situations like Luzerne County, we know better. The consequences of juvenile adjudications are serious and long term; the lack of representation can reshape a child’s entire life. Being found guilty can mean expulsion from school, exclusion from the job market, eviction from public housing, and exclusion from the opportunity to enlist in the military. It can affect immigration status. This is serious stuff.
And because it is so very serious, it’s critical that our state chief justices play a major leadership role. They can begin by protecting the right to counsel. The best way to do that is to prohibit the judicial acceptance of counsel waivers in your state by juveniles who have not at least received the advice of an attorney about their options and about the consequences of waiving such an important right. Many state supreme courts have adopted such a rule, including several in the past few years. A few states do not accept a waiver of counsel from juveniles under any circumstances. Every jurisdiction in the country should adopt a rule that at the very least requires consultation with an attorney prior to waiver of counsel.
We know from careful national studies that juveniles who lack counsel are much more likely to plead guilty without offering any defense or mitigating evidence. And without any credible defense, those young people are far more likely to end up in detention or incarceration, where they’re much more likely to be exposed to assault or sexual abuse, much more vulnerable to suicide, and far more likely to commit further crimes after their release. You, as our chief justices, can make a difference. Every child in delinquency proceedings should have access to justice via a right to counsel at every important step of the way: before a judicial determination regarding detention, and during probation interviews, pre-trial motions and hearings, adjudications and dispositions, determination of placement, and appeals.
Beyond waiver, it is time for the states to focus on the entire juvenile system, which has changed so much and yet receives so little systematic attention. We should have Blue Ribbon Commission on juvenile cases in every state, to find out the facts on waiver of counsel, on youth charged in adult court either directly or after transfer from juvenile proceedings, on plea and caseload rates, the qualifications of youth counsel, the collateral consequences for youth of delinquency adjudications and adult criminal convictions, and fees. Fees are important. Juveniles and their families – often poor families – often have to pay for detention, restitution, and victim funds. The National Juvenile Defender Center told our office about a 19-year-old college student who was brought into court in handcuffs because she had not paid fees that had been assessed against her when she was a child. She was held until she agreed to a payment plan.
Florida, Massachusetts, New York, and Washington, have eliminated the indiscriminate shackling of youth in delinquency proceedings. And the rest of the states should follow suit. Now is the time.
A second area in which we can make a difference involves the removal of artificial and often enormously counterproductive obstacles to pro bono representation for limited purposes (so-called “unbundled representation”), pro bono lawyering by attorneys licensed in jurisdictions other than your own, and more meaningful self-representation.
No substantial improvement in the delivery of needed civil legal services is likely unless we can find a way to stimulate more – and better designed and supervised – pro bono activity. It is difficult enough to find capable, well-trained lawyers who are willing to dedicate the time to significant pro bono work, so we simply cannot afford to cling to antiquated rules that, in a misguided application of ethical norms, artificially inhibit willing attorneys’ ability to actually perform pro bono services ably and with integrity.
In particular, there are several rules we should support:
Number One: all states should permit discrete task representation. Roughly 40 states have adopted the ABA’s Model Rule 1.2(c), or something similar, which permits pro bono attorneys to enter into representation agreements of expressly limited scope. These rules allow such attorneys to perform what are often short and simple tasks without taking on the duties and limitations that attend more classic full-scale attorney-client relationships. And because rules like 1.2(c) permit discrete task representation only where reasonable under the circumstances and after informed consent by the client, there is little or no downside.
Number Two: we should sensibly relax conflict rules for pro bono attorneys. Historically, too many well-intentioned and ethically alert attorneys were prevented from rendering needed services—even when those services were as simple as filling out a request for mediation regarding a client’s pending foreclosure—just because their firms had represented some financial or other institution on a vaguely related matter that had an attenuated theoretical interest in the issue at hand. Courts should not require pro bono attorneys who are providing short-term services with no expectation of continuing representation to screen systematically for such conflicts. Indeed, some states have gone even further – Washington, for example, permits pro bono attorneys to engage in short-term pro bono representation, subject to certain reasonable safeguards, even when they know of a lurking conflict.
Number Three: we should examine state rules of practice as they impact pro se litigants. I appreciate the difficulties that folks who can’t afford lawyers pose to states dockets and courtrooms, but as we embrace technology and form simplification we’ll be in dire need of clear rules that govern how court staff and non-lawyers may guide prospective litigants through the process of filling out self-help forms. I realize that unauthorized practice of law rules aren’t a popular topic of conversation around courthouse water coolers, but we must not inhibit the ability of pro se litigants to seek ministerial help in addressing issues as critical as child custody and housing simply because our UPL rules have not caught up with our reality.
In addition to the juvenile-justice and pro bono reforms, a third initiative that I urge is the creation – and, for those 24 states (and the District of Columbia) that have already created it, the care and feeding – of an Access to Justice Commission, whether by that or some other name, that embodies a sustainable institutional commitment to grading the state’s legal system in terms of how well or poorly it is delivering justice to the state’s people. Such commissions, typically created by supreme court rule or order, are deliberately designed to include judges, bar members, civil legal aid providers, representatives of law schools and, in some instances, members of the state’s executive and legislative branches. And they have achieved some remarkable results.
In California, the Access to Justice Commission secured an annual $10 million appropriation from the state legislature for civil legal services, and deserves much of the credit for the state legislature’s enactment of the groundbreaking Sargent Shriver Civil Counsel Act, which establishes civil Gideon pilot projects that will begin next year.
In Washington State, the access-to-justice commission helped establish the Office of Civil Legal Aid in 2006 as an independent agency within the judicial branch, and in addition to increasing civil legal aid from $6.6 million in 2005 to over $11 million just two years later, it played a key role in implementing rule changes to facilitate unbundled legal services and increase cy pres funding for legal aid.
The Texas Access to Justice Commission has approached funding issues creatively and, in addition to securing $2.5 million from the Attorney General’s budget for legal services for victims of crime in 2001, has helped funnel to legal aid offices fees collected from Texas bar members and from out-of-state lawyers appearing pro hac vice. The establishment of statewide Access to Justice Commissions has been called one of the most important justice-related developments in the past decade, and my office fully agrees.
The unifying theme of the three categories of action I am urging is not to be found in any ethereal abstraction. It is, quite simply, that these steps would manifestly improve access to justice in your states, and, they are demonstrably achievable.
And, if the search for a universal solvent for the intractable problems of justice can be paralyzing, the commitment to these achievable reforms can be empowering. So please don’t take the view that the three categories of changes I’ve outlined are so incremental, the success I’m aiming toward so far removed in time, that there’s no point in rushing to get started. To the contrary, the longer it takes to get there, the more crucial it is to begin without delay. As New Orleans Mayor Mitch Landrieu said in his first State of City address earlier this month, “There’s an old saying that the best time to plant an oak tree was 30 years ago. The second best time is now.”
I end with this thought: The trajectory of the moral universe will indeed bend toward justice, as Martin Luther King famously dreamed, only if we act to make the dream real. Unable to realize that goal in a single leap, we must not despair of realizing it step by step. The benefits of each step may seem small – but, as Richard Feynman once described the trajectory of the photon, each little arrow bent to a particular degree becomes in the aggregate a ray at the speed of light, lighting everything in its path. That ray can light our nation and the world if we all do our part.
Laurence Tribe is the Carl M. Loeb University Professor at Harvard University, and is Senior Counselor for Access to Justice in the Department of Justice.
This article was adapted, with permission, from Professor Tribe's Keynote Remarks at the Annual Conference of Chief Justices, July 26, 2010
Tags: civil rights, democracy, justice, Larry Tribe
06/02/10
by Lorraine Adams
Adams, a Pulitzer Prize winning former Washington Post reporter, looks at what happens when innocents are swept up in counter-terror efforts.
Since Times Square bomber Faisal Shahzad turned out to be a Pakistani native, it’s been a trying season for Muslim immigrants—especially those from the would-be terrorist’ s home country. The Feds have told Pakistan leaders “Check your family and staff for terrorist ties.” Terrorists are “hiding within our midst,” warned White House Counter-terrorism adviser John Brennan. Last week, and no doubt in the coming weeks too, we can expect a big spike in the number of Pakistanis arrested for immigration violations and related charges.
Sounds reasonable, doesn’t it? For the guilty, yes. For those who are neither guilty nor entirely innocent, the aftereffects will last—and last.
1999 was a similar season — for Algerians. Customs agents discovered explosives in the trunk of a rental car at the end of that year and arrested the driver, Ahmed Ressam, an Algerian as he tried to cross the Canadian border into Seattle. The country was in a state of heightened alert as turn of the millennium was but two weeks away, and, after Ressam’s arrest, government officials began detaining Algerians across the United States, almost all on immigration charges.
One of those then detained was Aziz Ouali, a 26-year-old East Boston dishwasher. Hunted by terrorists in his own country during the brutal Algerian civil war of the 1990s that left over a 100,000 civilians massacred, Aziz stowed away on a natural gas tanker from his hometown of Arzew, Algeria in 1997. He spent 52 days in the hold, and then dove into Boston harbor and swam ashore. Eventually he found other Arzew stowaways to live with, and one of them, Abdelghani Meskini, had a cell phone number that was found in the pocket of Ressam, the Algerian with the explosives.
As a reporter for The Washington Post, I wrote about Meskini in a Sunday magazine piece that ran in June 2001. I wanted the article to include Aziz’s story—an account of a young Muslim Arab who didn’t become a terrorist—but my editor at the time found his tale too ambiguous and thus too inconsequential to warrant more than a passing reference.
Frustrated after twenty years of writing simple-to-grasp articles despite the fact that my reporting often uncovered tangles of conflicting facts, I quit. I was in New York City three months later, when Saudi terrorists crashed into the World Trade Center towers, and killed the first boy I’d ever kissed along with 2,752 other people.
In the days afterwards, I sat down to write what would become a novel about Aziz. In 2004, Knopf published it to critical acclaim. Aziz, whose English wasn’t strong enough to read Harbor, never knew of it. His wife, a Boston secretary named Kim Sullivan, did, but she said the period the novel drew upon was too distressing to her husband and she felt it better not to mention it to him.
Today, Aziz sits in a Plymouth County jail in Massachusetts. He’s been there since last August. Aziz isn’t allowed phone calls, so I can’t talk to him. A few weeks ago, Kim, Aziz’s wife of nine-years, called. She was distraught. Ten years after Aziz’s arrest on Jan. 4, 2000, Karen-Anne Haydon, Boston Field Office Director of the U.S. Citizenship and Immigration Services, had ordered Aziz’s deportation. To stay with him, Kim, a blue-eyed, blond and Irish Catholic woman who pronounces Boston as “Bahston,” would have to move to Algeria, a country beset with Islamist insurgency and anti-American hostility. Her parents, in their seventies, were a wreck.
Aziz’s story today is, once again, a phantasmagoria of complication. There are failings on all sides.
There’s the government, which granted conditional resident status in May 2002, but never sent Aziz the green card he was entitled to. He applied, per instructions, for a replacement card, but for four years, officials stamped his passport so he could travel in and out of the United States to see his parents, and told him not to worry. Indeed, if the card had simply arrived, Aziz would probably not be facing deportation.
There’s his lawyer, Jerry Friedman, who never filed a required form I-751 asking that the conditions on Aziz’s resident status be removed, an oversight he says he regrets, but can’t realistically remedy. “I feel somewhat responsible,” he told me over the phone last week. “I should have at some point picked up on the fact that he should have filed. But I can’t keep track of when and where all my clients have to file every last item.” Friedman’s right: the immigration bureaucracy is a morass of filings, forms and deadlines. But, the fact remains: if Friedman had filed the form, Aziz would not be eligible for deportation.
Finally, there’s Aziz’s record. When he landed in America, he was arrested twice, both times for shoplifting a pair of sneakers--the first time in the months right after he swam ashore, and a year later, in 1998. He stayed in jail a night each time, and with no English and little understanding of the criminal justice system, believed he’d paid his debt to society. As a result, he didn’t mention the arrests when he applied for permanent resident status in 2001. The government, which had fingerprinted him numerous times and scoured his criminal record, didn’t find the misdemeanor arrests, both of which were ultimately dismissed. In her decision, however, Field Office Director Hayden found that Aziz’s failure to disclose the prior misdemeanor charges part of “a flagrant disregard for the laws of the United States.” The government did discover the arrests—but not until December 2005. It was then officials told Aziz he’d never filed the I-751 form. Plus: deportation proceedings were initiated at that point, but only because of the unfiled I-751 form. Kim and Aziz filed the form in 2006. But they needed $2000 to file it and the raft of other forms they needed to re-file. Aziz’s work as a housepainter had dried up, and out of work, he accompanied an old Arzew acquaintance on a shoplifting expedition to a Maine outlet store.
He was found guilty of criminal trespass and spent 21 days in a York jail. Shortly after, Kim and Aziz fought bitterly—and he pushed her. She got a ten-day restraining order and he slept in a motel for two nights. “I think he was frustrated,” she told me. “And he lost it and blamed me. “This is your country, these are your laws,” he was saying. We were both hot-tempered and he didn’t hurt me. I wish I’d not done it.” The trespassing conviction and Kim’s order figured in Hayden’s deportation decision.
Plenty of blame to go around, right? Well, it would take another novel to adequately untangle what landed Aziz in jail seven months ago and sped the deportation proceedings.
After the shoplifting fiasco, Aziz joined a company to make ends meet. Last summer, the economy in free all, he was laid off. The boss told him he was eligible for unemployment. The first two checks, about $180 every two weeks, arrived; when the third didn’t, Aziz went to the unemployment office to inquire. He brought folders of his now voluminous immigration records; Kim knew he would be asked to prove his green card status. The woman at the counter studied the documents. She was about to give Aziz a check when her supervisor interceded, took Aziz lost check claim form and, Kim told me, “”ripped it up in his face.” Aziz asked her, “What are you doing?” She said, “You don’t have a green card. Get one and come back.” After all the years of waiting for a green card, Aziz made a fatal error. As Kim tells it, he said, “Do you know what I’ve been going through to get a green card? I have a green card; it just never got mailed to me. I’ve been here ten years working, ten years paying taxes and here’s the order from the judge. What do you want me to do? Do you want me to go to the JFK building and get a gun and make them give me a green card?”
Aziz left the unemployment office. Senator Kennedy had just died and Boston was swarming with federal agents; as the country had been at the turn of the millennium ten years earlier, Boston was on high alert. Two U.S. Homeland Security federal protective service agents turned up Aziz’s parents’ house in Winthrop two days later. They were looking for Aziz. Kim’s mother called the couple, and Aziz spoke to the agents on the phone. Kim said he got off and said everything was fine. But the agents kept her parents’ house under surveillance that night. The next day her mother and father started out, as they did every weekend, for a drive to their New Hampshire cottage. Agents pulled them over in East Boston. “My mother called me,” Kim explained. “She was in a real dither. My father was out of his mind.” Aziz and Kim drove to the parking lot where her parents were detained and met the agents. Kim says everyone was friendly. The agents frisked Aziz, searched his truck and discussed his immigration problems.
“Everything seemed cool,” Kim recalled. “All of a sudden a white Murano comes flying into the parking lot and four guys come out. They cuffed Aziz and took him away.”
Aziz has been at Plymouth County Correctional Facility ever since. He still has time to appeal last month’s deportation ruling, but Kim says he’s lost heart, and fears he won’t give her the go-ahead to keep trying.
“It’s a very sad case,” Aziz’s lawyer told me.” I keep hoping the judge is going to wake up in the middle of the night like I do and say, “I really screwed up this case.””
Lorraine Adams, a Pulitzer Prize winning former Washington Post reporter is the author of two novels, Harbor, and The Room and the Chair, Knopf, February 2010.
Tags: Aziz Ouali, civil rights, justice, Lorraine Adams, Summary Judgment
06/02/10
Roe and Its Aftermath
Forty years after the Supreme Court’s Landmark Decision, Abortion Remains a Hot Button Political Issue
Linda Greenhouse and Reva B. Siegel Explore the Roots of the On-Going Conflict
In January 1973, the Supreme Court declared unconstitutional Texas’s 19th century abortion statute and Georgia’s more recent “ALI”-style legislation. The Court rested its decision on the right to privacy, found in Griswold v. Connecticut (1965) to protect the use of contraceptives. Roe v. Wade ruled that the right to privacy protected a woman’s decision in consultation with her physician whether to carry a pregnancy to term. The Court held that the unborn were not “persons” under the Fourteenth Amendment but that government had a constitutionally weighty interest in regulating the abortion decision to protect potential life. The Court explained that the strength of this interest corresponded with the stage of pregnancy. While the state was prohibited from restricting a woman’s right to abortion during the first trimester of pregnancy, it was permitted to regulate abortion “in ways that are reasonably related to maternal health” in the second trimester, and could constitutionally proscribe abortion after the point of “viability” (that is, when a fetus was capable of surviving outside the womb) except if doing so would endanger the life or health of the pregnant woman.
Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)
Roe’s holding fused old and new legal frameworks. By protecting a woman’s decision whether to bear a child until the period of fetal viability, the Court recognized as constitutional a framework at least partly resembling abortion “repeal.” Under Roe, government could no longer ban abortion or make access to the procedure conditional on ALI-type indications (for example, rape, maternal health) in the period of pregnancy before viability. But Roe did not altogether bar government from regulating abortion. To the contrary, Roe gave constitutional sanction to government interests in regulating abortion that grow with a pregnancy; it vindicated these interests alongside women’s right to have an abortion through the trimester framework, which allowed government to restrict abortion in the interest of protecting potential life at the point of fetal viability. In the years since Roe, the Court has allowed government more leeway to regulate abortion to express its interest in protecting potential life throughout pregnancy.
Roe’s reasoning fused old and new justifications for decriminalizing abortion. Roe indirectly reflected the abortion-rights claims of the women’s movement, recognizing that laws that criminalized abortion inflict constitutionally significant harms on women, and not doctors only. But Roe expressed those harms in public health-inflected language. The decision barred government from coercing women to bear children, but its reasoning did not audibly express the feminist claim (1) that a woman has dignitary interests in making her own decision about whether to bear a child, or (2) that a woman needs the ability to control the timing of motherhood in order to negotiate institutional arrangements that exclude caregivers from participation in the workplace and other arenas of civic life. Instead, Roe observed:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Roe justified the abortion right by appealing to Griswold and earlier decisions that protected the right to make decisions about family life free from state interference. In extending this right to privacy to encompass the abortion decision, Roe reasoned about abortion in terms drawn from the reform debates of the early 1960s, emphasizing the importance of protecting a doctor’s autonomy as much as that of his patients. Women’s advocacy helped establish women as constitutional rights holders who are entitled to make decisions about sex and parenting without control by the state—but Roe barely acknowledged that such claims were circulating in public debate. Instead, the Court explained and justified its holding in language that depicted doctors as the responsible and authoritative decisionmakers, with women as patients subject to their guidance. In Roe, the Court states:
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
.... This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
....The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. In representing the abortion decision as one that a woman made under the guidance of her doctor, the Court figured the doctor as the agent responsible for abortion decisions and the criteria guiding those decisions as medical.
This form of talk in Roe reflected modes of reasoning current at the time of the opinion. The recommendations of the Rockefeller Commission in 1972 presented women as having a “conscience” guiding their decisions about abortion, but nonetheless emphasized that women make decisions with their doctors.
Gallup polls in the summer of 1972 also expressed support for decriminalization in terms that presented women as making decisions with their doctors’ guidance. Gallup reported that “Two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.” Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary antiabortion movement.
If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade.
In the period between 1970 and 1972, even as public support for decriminalization was continuing to grow, bitter conflict over abortion had already begun. The story of decriminalization in New York and Connecticut shows that, even where opponents of abortion’s liberalization were numerically outnumbered, they were single-issue focused and passionate in moral conviction. In the period before Roe, the Catholic Church led opposition to decriminalization, organizing to support and punish legislators who voted for abortion’s liberalization. The fact that the Church and the burgeoning right-to-life organizations were encouraging single-issue voting around abortion caught the attention of politicians—and not only state legislators. Even as Catholics were working to build institutions and arguments opposing abortion in secular and nonsectarian terms, abortion’s very identification as a “Catholic” voting issue (however Catholics were divided about abortion, in fact) made the issue of interest to strategists building coalitions for the national political parties during the 1972 presidential campaign.
And so, by 1972, abortion was beginning to fi nd a life in national party politics. Republican Party strategists seeking to persuade Catholic voters and other so-called social conservatives to abandon their traditional alignment with the Democrats and join the Republican cause began to incorporate arguments against abortion rights into their case against the 1972 Democratic presidential nominee, George McGovern. Abortion rights, in this view, symbolized the new morality—a problematic “permissiveness” that afflicted the nation. Those who tarred McGovern as the “triple-A” candidate who favored amnesty, abortion, and acid may have suggested more of a difference between McGovern’s position on abortion and that of Republican nominee Richard Nixon than existed in fact; but the anti-McGovern arguments nonetheless helped reframe abortion’s meaning.
Triple-A claims about abortion had little to do with the concerns motivating public health reformers (who spoke of back alleys and coat hangers) or the claim advanced by religious opponents of abortion that abortion was murder. But the triple-A claim had much to do with feminist arguments for abortion repeal. Triple-A attacks on McGovern condemned abortion rights as part of a permissive youth culture that was corrosive of traditional forms of authority. The objection to abortion rights was not that abortion was murder, but that abortion rights (like the demand for amnesty) validated a breakdown of traditional roles that required men to be prepared to kill and die in war and women to save themselves for marriage and devote themselves to motherhood. Phyllis Schlafly’s attack on abortion never mentioned murder; she condemned abortion by associating it with the Equal Rights Amendment (ERA) and child care.
These shifts in the abortion right’s meaning were accelerating in 1972, as the ERA was sent to the states for ratification, and as the question of who should govern the nation was reverberating during the primaries and through the general election. But it is not clear whom these claims actually reached in the period before Roe. Th e claims reframing abortion that we have examined were designed to mobilize Catholic and conservative voters. Patrick Buchanan’s “assault book” advised the president’s campaign to send anti-abortion messages to Catholics and the National Right to Life Committee convention; and Phyllis Schlafl y—who had worked for Barry Goldwater in the 1964 election—sent her Phyllis Schlafly Report to a network of conservative readers. Th e reframing of abortion that would take hold over the course of the 1970s had only incrementally begun at the time the Court handed down Roe. (The first justice to join the Court after Roe was John Paul Stevens, nominated in December 1975. His views on abortion were unknown, yet at his Senate confirmation hearing, he was not asked a single question about abortion.)
In the immediate aftermath of Roe, organized opposition to the decision was still carried by the National Right to Life Committee and the Catholic Church. The National Right to Life Committee began mobilizing in support of a constitutional amendment that would overturn Roe and constitutionalize an embryo’s/fetus’s right to life, thereby requiring all states to recriminalize abortion. By 1975, the National Conference of Catholic Bishops had promulgated a Pastoral Plan for Pro-Life Activities that declared that “the decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of children.” The plan urged “[p]assage of a constitutional amendment providing protection for the unborn child to the maximum degree possible,” and “[p]assage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.”
During the years after Roe, opponents were unable to muster broad-based support for overturning the decision and requiring abortion’s recriminalization. Many Americans supported the right recognized in Roe, some quite passionately. Others believed that abortion should be decriminalized but criticized the Court for deciding a question that might have been left to the political process. Those who believed the question should have been left to the legislature did not support a human life amendment constitutionalizing prohibitions on abortion of the kind the right-to-life movement was then advocating. Advocates of a human life amendment could not fi nd the support they needed, even among religious leaders. In the early 1970s, most Protestant denominations did not share the Catholic Church’s view of abortion. As we have seen, mainline Protestant groups approved of liberalizing access to abortion; some approved repeal, while others endorsed variants of the “reform” position, advocating regulation on the “therapeutic model.” In this period, conservative evangelical groups did not view abortion as a categorical wrong. Even aft er Roe, in June 1973, Southern Baptist Convention President Owen Cooper criticized the Supreme Court for decisions liberalizing abortion—and banning capital punishment—and then proceeded to observe that the Southern Baptists would support abortions “where it clearly serves the best interests of society.” His view of abortion was far from absolute, and expressed in secular, not religious, terms.
When Roe was handed down, the family-values movement that would mobilize against the decision and ultimately carry Ronald Reagan to national office in 1980 had already begun to take shape, but it had not yet crystallized. That coalition did not form in spontaneous response to Roe but was instead built with the help of strategists for the Republican Party, including many brilliant Catholic conservatives. In the process, opposition to abortion as murder was married to a variety of socially conservative causes, accelerating the process of party realignment that had begun before Roe during the Nixon administration. When conservatives of the New Right began to assemble a pan-Christian coalition against Roe in the late 1970s, the crusade against Roe would proceed under the banner of “pro-life” and “pro-family.”
Phyllis Schlafly’s Stop ERA organization associated the Equal Rights Amendment with abortion and gay marriage, using this frame to mobilize opposition to the amendment’s ratification in state houses across the country. During the mid-1970s, funding battles in Congress provided a lower-stakes arena in which to forge new alliances and erode support for the abortion right. By the late 1970s, Richard Viguerie and Paul Weyrich—architects of a more conservative Republican Party—were approaching such Protestant evangelicals as the Reverend Jerry Falwell and helping them to see in the abortion issue a question that could create a pan-Christian movement united against “secular humanism” and for “family values.” By 1980, the Christian Harvest Times was denouncing abortion in its “Special Report on Secular Humanism vs. Christianity”: “To understand humanism is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.” In this way, a new relationship was emerging among Protestant evangelicals,the Catholic right-to-life movement, and the ascendant conservatives of the New Right. Increasingly lost in this transformation was an earlier Catholic association of a pro-life position with liberal ideals of social justice; forged was an increasingly tight association of pro-life with pro-family politics.
The decades of struggle that followed Roe—between the pro-life and prochoice movements and between the Republican and Democratic parties—came deeply to affect the Court and to infuse the Court’s reasoning about abortion with a much clearer expression of the convictions of the Americans arrayed in passionate support and opposition to the decision.
The Court’s decision in Roe was written by Justice Blackmun, whom President Nixon appointed to the Supreme Court in 1970, and supported by other of Nixon’s conservative appointees, including Lewis Powell, who during the Court’s deliberations actually advocated lengthening the time period in which women’s abortion decision was protected—from the end of the first trimester to the end of the second. But over the course of the 1970s, prominent Republicans shifted positions on abortion, acting on alignments and framings that were already in evidence by the 1972 election. By the decade’s end, conservatives of the New Right—led by Ronald Reagan, who, in the late 1960s, had signed California’s legislation liberalizing abortion—urged fundamentalist Christians to make common cause with Catholics in opposition to abortion and in support of family values. They attacked Roe as a threat to life and family and as a symbol of judicial overreaching. Republican Party platforms began regularly to support “the appointment of judges who respect traditional family values and the sanctity of innocent human life.”
With Republican presidents appointing justices who might be counted on to oppose Roe, judicial support for the decision narrowed, and by the late 1980s, Roe looked vulnerable to outright reversal. But the women’s movement continued energetically to mobilize in support of the decision, and in 1987 it helped defeat the nomination of Robert Bork, a prominent critic of the Court’s privacy decisions. Ensuing Supreme Court appointments by Presidents Reagan and Bush seemed to provide sufficient votes to overturn Roe. And yet, in 1992—during a presidential campaign in which the abortion right was a burning issue—the Supreme Court decided Planned Parenthood v. Casey, a case that both reaffirmed and narrowed Roe.
Casey justified both the abortion right and its regulation in terms that reflected the views of mobilized proponents and opponents of abortion rights more clearly than Roe itself had in 1973. Like Roe, Casey held that women had a constitutionally protected right to decide whether to bring a pregnancy to term, but, unlike Roe, Casey allowed government to regulate the exercise of that right from the beginning of pregnancy in the interests of protecting potential life—so long as the regulation did not impose an “undue burden” on a woman’s decision. Even as Casey narrowed the right recognized in Roe, it justified that right more expansively than Roe did. Casey tied constitutional protection for women’s abortion decisions to the fundamental liberty to choose one’s family life, as well as to the understanding—forged in the Court’s sex-discrimination cases—that government cannot use law to enforce traditional sex roles: “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Casey’s account of the constitutional values that the abortion right vindicates makes clear that government respects not only women’s freedom but also their equal citizenship. Yet, Casey also listens carefully to Roe’s critics. It allows government to regulate women’s abortion decisions to express respect for the value of human life, so long as government does so in ways that express respect for the decisional autonomy of women: “[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.” In ways that Roe did not, Casey situates the abortion right in a community deeply divided over the basic values implicated by the debate. That conflict continues—on and off the Court.
In Gonzales v. Carhart in 2007, the Court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act of 2003. The law had been devised by the right-to-life movement to focus attention on abortions that doctors perform late in pregnancy for medical reasons; the law was designed to provoke public unease with abortion, and it succeeded. Doctors developed the regulated procedure as safer for the woman under some circumstances; abortion opponents succeeded in portraying the procedure as a step from infanticide.
The five justices in the majority insisted that Congress could regulate the method doctors employed in later-term abortions in order to differentiate abortion and infanticide, and so express respect for human life. At the same time, the opinion reaffirmed a woman’s right to terminate her pregnancy before viability, as spelled out in Casey. But while in Casey the Court had, at last, placed women at the center of the abortion decision, in Carhart the Court spoke less clearly. To the majority, led by Justice Anthony M. Kennedy, a woman seeking to terminate a pregnancy needed the state’s protection against making an unwise choice that she would come to regret. The four dissenters, led by Justice Ruth Bader Ginsburg, recalled Casey’s understanding that the abortion right vindicates women’s equality and liberty as citizens, objected that the majority had reverted to a view of women as not fully capable of acting in their own best interests.
The future of abortion rights under the United States Constitution remains uncertain. The Supreme Court will again speak to the question, but the record suggests that it is not likely to have the last word. The future lies in the Court’s ongoing dialogue with the American people. And the documents that tell that story remain to be written.
This article is reprinted, with permission, from Before Roe V Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling by Linda Greenhouse and Reva B. Siegel, Kaplan Publishing, June 2010.
Tags: justice, Linda Greenhouse, Reva Siegel, Roe v. Wade, Supreme Court, Excerpts
05/17/10
...and why the President’s nomination for Justice Stevens’ seat is so important?
let us know your answer in the comments.
Judith Resnik, Professor of Law, Yale University: Robert Cover's Justice Accused -- about courts in the time of slavery -- is the key book to understand that all judges and justices must struggle to decide what is "just" and therefore, that it matters who are justices are.
Orin Kerr, Professor, George Washington University School of Law: Alexander Bickel, The Least Dangerous Branch. Bickel's classic book considers the proper role of the Supreme Court in a democratic society. The book is almost 50 years old, but it remains very influential today.
Sean Wilentz, Professor of History, Princeton University: The most authoritative account of the court's evolution appears in the multi-volume Oliver Wendell Holmes Devise History of the Supreme Court, although the series is still a good way from reaching the modern era. For recent, up-to-date, accessible considerations, see the contrasting evaluations in Jeffrey Toobin's The Nine, which covers the court since the Reagan years and focuses on personalities, and Peter Charles Hoffer's A Nation of Laws, which discusses the court as part of the broad sweep of the history of American law and jurisprudence.
Geoff Stone, Professor of Law, University of Chicago: Keeping Faith with the Constitution, by Goodwin Liu, Pamela S. Karlan, and Christopher Schroeder, which provides an excellent account of a progressive understanding of constitutional law.
Alan Dershowitz, Professor, Harvard Law School: The Supreme Court deserves less respect than it gets -- especially from lawyers, professors, former law clerks and the elite media. It is simply another political institution whose members trade votes, make calculating decisions and maximize their own power and interests. There’s no evidence that principles play a greater role in judicial, than in legislative or executive decisionmaking -- especially at the Supreme Court level. But, there is far more hypocrisy in the judicial branch, because its power derives largely from the pretense that it is applying neutral principles in a principled manner. (That is why it would have been far more honest for the 2000 election to have been decided by the legislative branch on overtly partisan grounds than by the judiciary on hypocritically principled grounds.) Most books by law professors about the Supreme Court are far too deferential. The books I recommend are exposé books like Woodward and Armstrong's The Brethren and those which follow in its tradition by relying on inside sources, leaks and unauthorized disclosures. And by the way, there is no Santa Claus!
Conrad Harper, retired partner, Simpson, Thacher and Bartlett LLP: The biographical essays in Mr. Justice, edited by Allison Dunham and Phillip B. Kurland, offer insight into several key Justices. Justices are not paragons, but real people facing difficult issues that implicate their life experiences. Justice Stevens’s essay on Justice Rutledge, for whom he clerked, reveals a good deal about what Rutledge and Stevens regarded as important to judging.
Michael Gerhardt, Professor, UNC College of Law: Henry Abraham's classic Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II is the best book for understanding the Supreme Court and the importance of Obama’s nomination for Justice Stevens seat. Other essential reading:
Tags: justice, Judicial Nominations, Supreme Court, John Paul Stevens, Suggested Reading
05/12/10
Finding Chandra: A True Washington Murder Mystery
By Scott Higham and Sari Horwitz
Reviewed by Maggie Barron
In 2008, after the Washington Post published a thirteen-part serial on its front page titled “Who Killed Chandra Levy,” the paper’s ombudsman, Deborah Howell, weighed in. “No investigation in my 2 ½ years here has provoked such sharply opposing reader comments,” she wrote, ranging from “Fascinating! Totally hooked! Riveting” to “Lurid! Appalling! A waste of time!”
The same adjectives come to mind in Finding Chandra, a repackaging of the Post series published almost exactly nine years after the Washington intern’s unsolved murder. Investigative reporters Scott Higham and Sari Horwitz, with the benefit of new interviews and confidential documents from inside the investigation, piece together the case step by step, trying to get at the answers that have eluded investigators for so long.
Chandra Ann Levy arrived in Washington, D.C. in 2000, as one of the city’s 20,000 summer interns. On the cusp of independence, Chandra found an internship at the Bureau of Prisons and her own apartment near Dupont Circle, but her parents still paid her cell phone bill. Incidentally, this was how they caught wind of their daughter’s affair with their Congressman, Gary Condit.
Condit, a rising star in Congress and a founder of the Blue Dog Democrats, had a habit of handing out his email and phone number to young women and spending campaign money on gifts for his constituents. He met Chandra soon after she arrived in D.C. and the affair began several weeks later. Chandra’s life in D.C. revolved around her secret relationship with Condit, and she had few other friends. That’s partly why, when Chandra disappeared in May, 2001, her parents instantly suspected Condit, especially when he denied knowing her very well.
Chandra’s parents knew that a media frenzy would keep pressure on the police to find out what happened to their daughter. But as the pressure increased, it may have allowed the true killer to evade authorities.
Condit’s denial of the affair, and his rather clumsy attempts to have the investigation point elsewhere, meant that no one, parents, police, or press, could possibly consider any other suspects. Condit submitted himself to several interviews, a DNA test, and an apartment search all in an attempt to clear his name. Each effort only reaffirmed that he was the prime (and only) suspect. How could it not be him? After months of scrutiny FBI investigator finally arrived at the more likely conclusion: “Condit simply didn’t care enough about Chandra to harm her or kill her.”
The tunnel vision may seem laughable now, but it is also tragic. As the press and the police hounded Condit, the critical window to find Chandra’s killer closed, clues disappeared, and a man by the name of Ingmar Guandique remained at large to assault several other women in Rock Creek Park. Guandique, an immigrant from El Salvador with a history of psychological problems, began his series of attacks on joggers around the time of Chandra's disappearance. The day after Chandra disappeared, his landlady noticed that he was covered in bruises and scratch marks. Yet it was only a year later, when a hiker stumbled across Chandra's skeletal remains in the park, that officials began to investigate him. By then, there was very little evidence left.
The book chronicles the media circus surrounding the Levy case, of course, but it’s the details of the error-riddled police investigation that are truly compelling. When Chandra’s parents filed a missing persons report, the D.C. Police Department had a record of solving only a third of the city’s homicides. Police forgot to check the surveillance cameras in Levy’s building before the tapes were deleted. Investigators in her apartment somehow interfered with her laptop before the FBI could analyze it. They chased after tips called in by psychics, but they did not think to search Rock Creek until months after her disappearance. Mistakes persisted even when collecting her remains. Investigators missed several large bones and blamed “woodland creatures” for making them difficult to find.
Despite the rich material, Higham and Horwitz are maddeningly vague on key turning points in the investigation. Why did it take the FBI over a month to search Chandra’s computer (where they found that she had looked at a map of Rock Creek Park trails right before disappearing)? Why did Park Police not think to notify investigators when known predator Guandique admitted to seeing Chandra in the park? Why, when they finally did search the park, did they search the roads but not the hiking and jogging trails, where her body would later be found? In the book, these issues are barely addressed.
These omissions are even more frustrating when the authors choose to sprinkle in entirely unnecessary details, like the kinds of animals a hiker used to find as a child, or the favorite TV shows of one of the investigators. In other cases, the authors fall back on shorthand and cliché in place of true characterization. Chandra ”was like the girl next door.” A U.S. Attorney is “a tough-talking Long Islander.” Mrs. Condit is simply “the consummate politician’s wife.”
The authors conducted hours of interviews, and yet the sources never really come to life. Condit, Levy’s parents, and the investigators are almost never quoted directly, so readers never hear their voice or their words. Instead the authors tie the narrative together seamlessly using many different interviews and points of view, but this makes it difficult to know whose version of events we are reading. I found myself constantly flipping back to the Notes section to verify.
So what have we learned from the case of Chandra Levy? Sadly, very little. There is no reason to think that the media would be more tempered in its coverage of a similar case today, or that investigators would be more focused, or that powerful men would start telling the truth earlier.
When the news is slow, very little can stop a media circus (in the summer of 2001, when the press wasn’t covering Chandra Levy, it covered shark attacks). It was only on the morning of 9/11 that the news trucks finally left the homes of the Condits and the Levys. The frenzy was over.
Almost a decade later, Ingmar Guandique is awaiting an October trial for what appears to be the entirely senseless, unmotivated murder of Chandra Levy. Though there are no other suspects, the authors admit that there is still very little evidence connecting Guandique to the crime. In fact, investigators took so long to find Chandra that they could not even discern a cause of death from her remains. In the first months of the investigation, it hardly dawned on anyone that Chandra’s death might not have been a titillating scandal but was instead a horribly random occurrence. In the end, people, including Chandra’s parents, wanted it to be Condit. The mystery of Chandra Levy remains unsolved because everyone wanted the story to be more sensational than it was.
Maggie Barron is a former staff member of the Brennan Center for Justice.
Tags: crime, justice, Book Briefs
05/12/10
By Deborah L. Rhode
photo by Robin Andersen
“It hurts to be beautiful” is a cliché I grew up with. “It hurts not to be beautiful” is a truth I acquired on my own. Only recently have I begun to grasp the cumulative cost of our cultural preoccupation with appearance. Over a century ago, Charles Darwin concluded that when it came to beauty, “[n]o excuse is needed for treating the subject in some detail.” That is even truer today; our global investment in appearance totals over $200 billion a year. Yet when it comes to discrimination based on appearance, an excuse for discussion does seem necessary, particularly for a scholar specializing in law and gender. Given all the serious problems confronting women—rape, domestic violence, poverty, inadequate child care, unequal pay, violations of international human rights—why focus on looks? Most people believe that bias based on beauty is inconsequential, inevitable, or unobjectionable.
They are wrong. Conventional wisdom understates the advantages that attractiveness confers, the costs of its pursuit, and the injustices that result. Many individuals pay a substantial price in time, money, and physical health. Although discrimination based on appearance is by no means our most serious form of bias, its impact is often far more invidious than we suppose. That is not to discount the positive aspects of appearance-related pursuits, including the pleasure that comes from self-expression. Nor is it to underestimate the biological role of sex appeal or the health benefits that can result from actions prompted by aesthetic concerns. Rather, the goal is to expose the price we pay for undue emphasis on appearance and the strategies we need to address it.
What compounds the problem is our failure to recognize that it is a significant problem and one to which law and public policy should respond. Compared with other inequities that the contemporary women’s movement has targeted, those related to appearance have shown strikingly little improvement. In fact, by some measures, such as the rise in cosmetic surgery and eating disorders, our preoccupation with attractiveness is getting worse. Injustices related to appearance fall along a spectrum, and involve everything from debilitating discrimination and social stigma, to the costs of conformity in time, expense, and physical risk. Even relatively minor inconveniences can cumulatively exact a substantial price.
THE PERSONAL BECOMES POLITICAL:
THE TROUBLE WITH SHOES
It started with shoes. Like many American women, I have had more issues with appearance than I care to recall. Happily, however, I have landed in an occupation with undemanding standards. Academics are known for relentlessly unattractive apparel. I am a case in point. My fashion instincts veer toward frumpy, but one compensation is that they have freed me from the footwear fetishes of many otherwise sensible women. In many professional contexts, I am surrounded by colleagues tottering painfully on decorative footwear. Some of the nation’s most distinguished female leaders hobble about in what we described in high school as “killer shoes.” During my term as chair of the American Bar Association’s Commission on Women in the Profession, I was struck by how often some of the nation’s most prominent and powerful women were stranded in cab lines and late for meetings because walking any distance was out of the question.
But inconvenience is the least of the problems. High heels are a major contributor to serious back and foot problems, and four-fifths of women eventually experience such difficulties. In an interview with the Wall Street Journal, one owner of a marketing firm acknowledged that her taste in footwear was partly responsible for her herniated disk. But about half of her clothes only “look[ed] good” when accompanied by four- to five-inch heels, so she had become resigned to pain: “There is a price to pay for beauty and high heels is one of them.” Now that designers are offering stilettos topping out at six inches, and several models wearing them have fallen on Milan runways, some stores have started to offer “Heel Walking Workshops.”
This is not, of course, a new problem. Chinese foot-binding is the most obvious, but by no means the only case in point. Although comfortable choices have clearly improved, shoe design may be the last politically acceptable haven for closet misogynists. Typical fashion profiles feature not a single item suitable for actual movement. Most have spindly heels and flesh-biting designs, on the apparent assumption that “if the shoe pinches, wear it.” All around me, smart accomplished women are doing just that, and ignoring the risk that heels this high will catch in grates, flatten arches, breed blisters, and hurt like hell on any extended walk. A startlingly large number of women are even willing to undergo painful and risky foot surgery for the sake of better “toe cleavage” that will fit fashionable styles. Women account for about 80 percent of all foot surgery, much of it related to high heels.
Some years ago, in a fit of pique, I wrote a semi-satirical New York Times op-ed on footwear as a feminist issue. Never have I touched such a responsive chord on issues involving gender; my mail box was swamped. Podiatrists sent supportive research, progressive shoe manufacturers sent catalogs, women shared tales of woe, and men vented their frustrations with wives’ dysfunctional choices. Not all responses were, however, complimentary. Some readers questioned why I had squandered this rare media opportunity on such a trivial problem. In a country where four million women annually are victims of domestic violence and twenty million live in poverty, why put the height of heels at the top of the women’s agenda? The short answer was that I hadn’t. I have been peddling earnest policy-oriented editorials on more serious topics for decades. This was the column the Times was interested in printing. But my broader point, then and now, has been to expose how appearance-related practices, even some that seem petty or benign, can cumulatively limit our lives. If men manage to be sexy without help from their footwear, why can’t women? And why have we made so little headway, in law, politics, and public education, in addressing the injustices of appearance?
THE COSTS AND CONSEQUENCES OF APPEARANCE
A threshold question is why we should care about any of these questions. What are the social consequences of physical appearance? Although most of us realize that looks matter, few of us realize how much, or how early its influence starts. Beginning at birth, those who are viewed as physically appealing are also more likely to be viewed as smart, likeable, and good. The ridicule and ostracism that unattractive children experience can result in lower self-confidence and social skills, which leads to further disadvantages in later life. Appearance also influences judgments about competence and job performance, which, in turn, affect income and status. Résumés get a less favorable assessment when they are thought to belong to less attractive individuals. These individuals are also less likely to get hired and promoted, and they earn lower salaries, even in professions such as law where appearance has no demonstrable relationship to ability.
Given these advantages, it makes sense for individuals to be concerned about their appearance. Still, the extent of that concern is striking. In representative surveys, 90 percent of women consider looks important to their self-image, and over half of young women reported that they would prefer to be hit by a truck than be fat; two thirds would rather be mean or stupid. More than a third of obese individuals are willing to risk death in order to lose just 10 percent of their weight; three quarters will assume the risk for 20 percent.
People also spend more on appearance than the results often justify. Americans invest $40 billion annually on diets, which rarely result in significant or sustained weight loss. About 95 percent of dieters regain their weight within one to five years. Of the $18 billion consumers spend on cosmetics, only 7 percent pays for ingredients. The rest subsidizes expensive packaging and marketing of products, including many that scientists find ineffectual. Even investments that result in high levels of individual satisfaction raise issues of social priorities. Although almost a fifth of the United States population lacks basic health care services, inessential cosmetic procedures have increased by 400 percent over the last decade and are the fastest growing area of medical expenditures. Liposuction is the world’s most common form of surgery.
Moreover, time and money are not the only costs. Substantial health risks accompany some appearance-driven practices, particularly those involving cosmetic surgery and yo-yo dieting. For many individuals, concerns about appearance also contribute to psychological difficulties such as depression and eating disorders. These difficulties are partly attributable to widespread stigma and discrimination. Bias based on attractiveness is largely unregulated and compounds other inequalities based on class, race, ethnicity, and gender. Prevailing beauty standards privilege those with white-European features and the time and money to invest in their appearance. Women face greater pressures than men to look attractive and pay greater penalties for falling short.
SURVEYING THE FOUNDATIONS: SOCIAL, BIOLOGICAL, ECONOMIC, TECHNOLOGICAL, AND MEDIA FORCES
What accounts for this premium on appearance? According to sociobiologists, we value attractiveness, especially in women, because it is a sign of health and fertility, which are key factors in reproductive success. Such theories help account for nearly universal preferences such as clear skin, facial symmetry, and hour-glass figures. But evolutionary imperatives alone cannot explain the variations over time and culture in what people perceive as attractive. The most obvious example is weight. Whether plumpness is prized or punished seems to depend largely on its role in signaling social status under different environmental conditions. Where food is scarce, fatness is a mark of wealth and prominence. Where food is abundant, the reverse is true. Our current cult of thinness makes no sense from an evolutionary standpoint; low body weight is linked to reproductive dysfunction.
There are other explanations for the importance of appearance and variations in cultural preferences. How someone looks can express religious and political values, as well as convey class and cultural identity. Particularly in today’s consumer-oriented culture, dress, grooming, and figure are crucial signals, as well as sources, of wealth. The body is a prime site for what sociologist Thorstein Veblen famously described as “conspicuous consumption.” Huge global industries turn on addressing problems that we haven’t always known we have. Sags and bags that were once accepted as a normal consequence of aging now account for a multibillion- dollar market in frequently ineffectual cosmetic responses.
Advances in science and technology have created new opportunities for “self-improvement” and corresponding pressures to take advantage of them. For example, the dramatic escalation in cosmetic surgery reflects both the growth in effective techniques and physicians’ efforts to market services not subject to insurers’ cost constraints. Other appearance-related products, now cloaked in a veneer of pseudoscience, promise effortless perfection. “Space-age slenderizer” and “poly-u collagen peptides” offer to shed consumers’ unwanted pounds and wrinkles overnight. The media in general and advertisers in particular have played an important role in magnifying the importance of appearance and the pressures to enhance it. Women’s magazines pitch an endless array of cosmetic advice and exhortation. Judging from their tables of contents, readers’ most urgent concerns are on the order of “thinner thighs in thirty days.” Televised makeovers and beauty pageants fuel implausible aspirations and unhealthy practices. “Reality” programs involving weight loss and cosmetic surgery are anything but realistic; careful editing omits anything inconsistent with a happily-ever-after ending. The public’s repeated exposure to airbrushed, surgically enhanced fashion models and Hollywood celebrities further reinforces unrealistic standards. Only five percent of American women are in the same weight category as models and actresses, and efforts to replicate their figures often lead to eating disorders and related psychological dysfunctions.
The media’s sexualized portrayals of prominent women, including everyone from athletes to politicians, also carries a cost. Overemphasis of their appearance deflects attention from their performance and reinforces sex-based double standards. That the highest paid member of Sarah Palin’s vice presidential campaign was her makeup “artist” speaks volumes about our misplaced priorities.
FEMINIST CHALLENGES AND RESPONSES
There have been efforts to challenge these priorities. In the United States, the nineteenth-century social purity crusade against cosmetics, the African-American campaign against skin whiteners and hair straighteners, and the feminist struggle for dress reform all set the terms for modern debates. During the Victorian era, religious and community leaders insisted that “respectable” women did not rouge. Prominent African Americans denounced cosmetic and grooming practices designed to replicate white norms. And suffragists such as Elizabeth Cady Stanton and Amelia Bloomer attempted to popularize alternatives to the corsets and crinolines that endangered women’s health and constricted their movement.
None of these efforts were particularly successful. It took the rise of the contemporary women’s movement in the 1960s to mount a broader and more sustained challenge to the beauty industry. That campaign kicked off with the infamous “bra-burning” protest at the 1968 Miss America pageant. Although no lingerie was in fact incinerated, the label stuck and battle lines were drawn. In most media portrayals, the activists were frumpy fanatical feminists, unhappy about standards of attractiveness that they could not hope to meet.
Gradually, however, the mainstream women’s movement supplied more tempered and influential critiques. Naomi Wolf’s bestselling Beauty Myth exposed many products as what dermatologists labeled “cosmetic hoo-hah.” A cottage industry of commentary on eating disorders and cosmetic surgery has made clear the medical risks of other appearance-driven practices. As critics have noted, even physically harmless preoccupations divert time and money to self-improvement rather than social action. Sexualized portrayals of prominent women—Hillary Clinton’s cleavage, Sarah Palin’s beehive, Michelle Obama’s upper arms—have underscored the double standard that channels attention to women’s appearance instead of their accomplishments.
Responses to these critiques have taken several forms. Commentators within and outside the women’s movement have defended appearance-related efforts as either a satisfying form of self-improvement and self-expression, or a necessary concession to cultural expectations. From their standpoint, the “personal may be political” but it is also personal. As long as women are subject to a double standard, they might as well do what they need to do and get on with their lives. The beauty industry has made analogous efforts to respond to feminist critiques by co-opting feminist principles. In the world of Madison Avenue marketers, diet and cosmetic products are a way for women to “be all they can be” and express who they “really are.”
Yet what is it that women want to be and how much time and money do they want to spend to get there? For many women, there are no easy answers, and issues of appearance remain a source of anxiety and ambivalence. That is particularly the case for women of a certain age, when cosmetic procedures, hair tints, and weight loss regimes begin to seem like necessary alternatives to “letting themselves go.” Even feminists who see these options as oppressive often feel shamed by their inability to escape them, or discomfited by the trade-offs. After all, as Susan Brownmiller ruefully notes, “sensible shoes aren’t sexy.”
There are some ways around this standoff. Whatever their other differences concerning appearance, most women would agree on several key points. The pursuit of beauty should be a source of pleasure, not a response to shame or social pressure. Women should be able to choose whether or not to dye their hair or use Botox without being viewed as politically incorrect or professionally inadequate. They should neither be held to a higher standard of appearance than men, nor ridiculed as vain for their efforts to measure up. If men can seem eminent as they age without cosmetic enhancement, so too should women.
APPEARANCE DISCRIMINATION: SOCIAL WRONGS AND LEGAL RIGHTS
We are, however, a far distance from this ideal world. What stands in the way? Two fundamental questions arise: Are any of the disadvantages resulting from discrimination based on appearance unjust? If so, do they call for some legal remedy?
The clearest argument for condemning appearance discrimination is that it offends principles of equal opportunity and individual dignity. As with other forms of prejudice, bias based on appearance often rests on inaccurate stereotypes. Assumptions that overweight individuals are lazy, undisciplined, or unfit are a case in point. Appearance–related discrimination also may stigmatize individuals based on factors at least partly beyond their control, and may encourage unsafe cosmetic and dieting practices.
A related concern is that such bias reinforces other inequalities based on race, ethnicity, class, age, and gender. A widely publicized example of sex-based double standards in appearance involved the grooming policy at Reno’s Harrah’s Casino. It required female beverage servers to wear makeup and nail polish, and to have their hair “teased, curled, or styled.” Male servers needed only short haircuts and fingernails that were “neatly trimmed.” Darlene Jespersen, a bartender with an outstanding performance record, challenged the policy on the grounds of sex discrimination. She felt that being “dolled up” was degrading and interfered with her ability to handle unruly customers. A federal appellate court rejected her challenge because she had not introduced proof that the standards imposed disproportionate burdens of time and expense on women, a fact that presumably would be obvious to reasonable jurors. Does anyone, except apparently some federal judges, really need expert testimony comparing the average time required for cleaning fingernails with applying makeup and styling hair? And as one dissenting judge pointed out, cosmetics “don’t grow on trees.” Such makeup and manicure requirements may seem trivial, but the broader principle is not. As another dissenting judge noted, the assumption underlying the casino’s policy was that “women’s undoctored faces compare unfavorably to men’s.” Holding only women to sexualized standards diverts attention from competence and perpetuates gender roles that are separate and by no means equal.
A final objection to discrimination based on appearance is that it restricts rights to self-expression. How individuals present themselves to the world may implicate core political values, cultural identity, and religious beliefs. Frequently litigated examples include hair length, hair styles, headscarves, and yarmulkes that employers have been unwilling to accommodate.
Although many individuals dismiss such discrimination as inconsequential, it occurs more frequently than they assume. Anywhere from 12 to 16 percent of workers believe that they have been subject to such bias, a percentage that is in the same vicinity, or greater, than those reporting gender, racial, ethnic, age, or religious prejudice. So too, almost half of surveyed Americans believe that obese workers suffer discrimination in the workplace, a figure that is higher than for other groups, such as women and minorities, who are protected by antidiscrimination laws. When asked about legal remedies, the public splits almost evenly for and against prohibitions, with a majority of women and minority groups favoring a ban.
What stands in the way? There are a few major arguments against making appearance discrimination unlawful. One concern is that for some goods and services, employees’ attractiveness can be an effective selling point. Many bars, restaurants, and department stores have imposed hiring and grooming standards that enforce a certain “brand” look: “slender,” “hot” “young and trendy” or “not too ethnic.”3 As one Hooters spokesperson explained, “A lot of places sell good burgers. Hooters Girls, with their charm and all- American sex appeal, are what our customers come for.”
Yet that is an argument that courts have generally rejected in other discrimination contexts, and with reason. Consumer preferences often reflect and reinforce precisely the attitudes that society is seeking to eliminate. So, for example, unless sex is a business necessity, employers may not select workers on that basis. The same should be true of sexual attractiveness. Hooters’ customers who want cleavage with their burgers are no more worthy of deference than the male airline passengers in the 1970s who preferred stewardesses in hot pants.
To some courts and commentators, however, a ban on appearance discrimination asks too much. From their perspective, even if such discrimination is unfair, the law is incapable of eliminating it and efforts to do so will result in unwarranted costs and corrosive backlash. Stanford law professor Richard Ford voices a common objection: “a business community united in frustration at a bloated civil rights regime could become a powerful political force for reform or even repeal.” Many judges bristle at the prospect of clogging the courts with petty disputes over makeup, weight, and grooming standards. But it is by no means self-evident that prejudice based on appearance is harder to eradicate than other forms of bias. In fact, considerable evidence suggests racial, gender, and disability biases are also deeply rooted, but nonetheless subject to change through legal prohibitions. Moreover, as discussion below notes, none of the few local and state prohibitions on appearance discrimination currently in force have triggered the exorbitant costs or backlash that critics have predicted.
Bans on appearance discrimination could contribute to progressive social change. By expressing aspirations, establishing appropriate standards, deterring violations, and raising public awareness, such legal remedies could nudge us closer to a just society. In cases where victims of appearance discrimination have brought suit, the result has often been to raise public awareness of the costs of bias and to secure workplace or policy changes that help prevent it. Even litigants who lose in court may win in the world outside it. Harrah’s casino changed its policy after the lawsuit. But Darlene Jespersen paid too high a price. She lost a job at which she excelled and was blacklisted when she sought another. As her lawyer noted, when it comes to the casino business, “Reno is a small town.”
LEGAL FRAMEWORKS
Jespersen’s experience is all too typical. On the whole, the legal regulation of appearance has an unbecoming history. Its Anglo-European foundations date to thirteenth-century sumptuary laws, which reserved certain fashions only for aristocrats. Early American legislation focused more on preventing “indecency” than reinforcing class privilege. To that end, some jurisdictions banned “unsightly” individuals or women without corsets from appearing in public.
Contemporary law has banished such archaic prohibitions, but it has also given wide latitude to businesses and employers to impose their own restrictive grooming requirements and to discriminate on the basis of appearance. In general, such discrimination is illegal only if it involves other characteristics that civil rights law protects, such as sex, race, religion, or disability. So, for example, weight and grooming standards can be struck down if they impose unreasonable, disproportionate burdens on one sex. Grooming codes may be impermissible if they fail to make reasonable accommodation for religious expression, or selectively target practices associated with a particular racial group. Disability law has been held to prohibit weight discrimination in a very small percentage of cases involving extreme obesity that has a biological basis and that appears to impair normal functioning.
Even in these contexts, however, many courts have taken a restrictive view of what counts as discrimination. A representative example is the Harrah’s casino decision, which found no disproportionate burden resulting from hair and makeup rules. Judges have also been unsympathetic to African American women’s desire to wear cornrows, and Sikh employees’ wish to wear turbans or beards, even when the employer presents no convincing business justification for banning them. Narrow interpretations of state and federal disability law also exclude from protection the very individuals who need it most: those who are only moderately overweight and who are not impaired in their job performance. Such employees can be dismissed at will even if employers can show no demonstrable competence or health-related reasons.
These dismissals seem particularly unjust when the job involves no customer contact. As an attorney for an obese man denied a job as a fast-food cook put it, “The only thing that should matter to McDonald’s . . . [is] how he cooks, not how he looks.” Cases where individuals in such positions have lost their jobs occasionally have prompted public protests and policy responses, including some of the local ordinances that ban discrimination based on appearance. How do these ordinances work in practice?
One state and six cities or counties prohibit some form of appearance discrimination: Michigan, San Francisco, the District of Columbia, Santa Cruz (California) Madison (Wisconsin), Urbana (Illinois), and Howard County (Maryland). These laws vary in coverage and in the frequency of enforcement, but no jurisdiction has experienced the flood of frivolous claims that commentators have anticipated. Hypothetical examples such as Jewish deli owners forced to hire cashiers with swastika tattoos have made for provocative journalism, but they are nowhere to be found in reported cases.39 Santa Cruz, the poster child for critics of appearance prohibitions, has had no complaints in fifteen years. Urbana has had none in seven, and San Francisco has had only two in eight years. The average number of annual complaints for the other jurisdictions has ranged between one (the District of Columbia) and thirty (Michigan). Most have included allegations of other forms of bias (race, sex, and religion). Although some of these claims seem frivolous, they could have been brought without an appearance law, so it is not clear that the law has added significantly to businesses’ legal expenses.
Few appearance complaints have resulted in litigation or an unqualified victory for the complainant. For example, Michigan has averaged fewer than one lawsuit a year, and no final judgments of discrimination. However, a substantial number of cases have ended up with reasonable negotiated settlements, and the existence of the laws may have deterred unjust bias. Moreover, the grievances that have obtained some legal remedy demonstrate the need for such protection. A representative example involved a waitress fired when she was six to seven months pregnant, despite a doctor’s letter indicating that she was still able to work. The manager’s professed concern for maternal health was inconsistent with statements that she made to other workers about the effect of the waitress’s appearance on the restaurant’s image.
The American experience fits in a broader international context. European law is similar to that of the United States, and generally prohibits appearance discrimination only when it involves other forms of bias covered by human rights law (such as that involving race, gender, religion, age, disability, and sexual orientation). However, some countries, particularly France and Germany, extend greater protection to employee privacy, dignity, and self expression; those interests prevail unless the employer can demonstrate a strong countervailing business justification. So too, in Germany, grooming codes are often established through “codetermination” between management and elected worker councils, a process that accords significant weight to employee interests. Based on the information available, the Australian state of Victoria is the only jurisdiction outside the United States that has an explicit ban on appearance-related bias. It experiences few complaints that require a formal hearing.
Part of the reason for the limited legal enforcement activity both here and abroad is that victims of appearance discrimination face significant costs and evidentiary obstacles; favorable decisions are unlikely in the absence of compelling undisputed facts. Many individuals are unwilling to assume the stigma and reputational damage of publicly airing complaints about their unattractiveness. Particularly in jurisdictions that do not authorize attorneys’ fees or substantial financial damages, victims also may lack sufficient economic incentives to pursue a claim. Another deterrent is the extreme deference that some courts and commissions give to employer regulations. So for example, Wisconsin discount stores and pet supply outlets have been allowed to ban earrings for male sales personnel. Employers’ desire to ensure a “pleasant shopping experience,” and their unsupported assumption that jewelry on men is inconsistent with that goal, have been found sufficient justification for the restrictions.
Yet despite these limitations, the existence of appearance discrimination laws can sometimes make a difference. There are, in fact, many examples in which victims of inaccurate stereotypes or invidious bias obtained reasonable remedies. When these cases also attracted significant publicity, they sent a message to employers, and raised public awareness of the costs of discrimination. A complaint before the San Francisco Human Rights Commission illustrates that potential. It involved Jennifer Portnick, a 240-pound aerobics instructor, who was denied a franchise by Jazzercise, a national fitness company. According to its lawyer, “One of the keys to success is extending franchises to instructors with a fit, toned body. Being able to portray this image inspires students . . . [and] is a necessary part of what students seek to achieve.” But Portnick was in fact fit. She worked out six days a week, taught back-to-back exercise classes, and had no history of performance problems or lack of students. She simply wanted to be “judged on my merits, not my measurements.” After a commission ruling in her favor and massive adverse publicity, the company changed its policy. The message that emerged in national media coverage was that full-bodied students can be inspired, not deterred, by an instructor their size who is fit and toned. Given recent evidence suggesting that fitness, rather than body mass, is the best predictor of health in most overweight individuals, that is an important social message.
There is one area in which more effective appearance-related laws and enforcement structures could make a difference in one particular area: the regulation of false or misleading claims about beauty and weight-reduction products. Aggressive marketing of these products both encourages preoccupation with appearance and deludes consumers about effortless ways to enhance it. Although federal and state consumer agencies have authority to regulate fraudulent advertising, they lack the resources to keep up with the barrage of deceptive claims involving pseudoscientific “miracle methods.” If promises about these products sound too good to be true, it’s because they aren’t true. No one, outside the fantasy land of Madison Avenue marketing, can “eliminate” fat through seaweed patches and Chinese herbal creams (“no will power required”). Yet consumers squander billions of dollars on such products, partly because a majority of the public wrongly assumes that manufacturers could not make these claims without solid scientific evidence for their validity.
A ROAD MAP FOR REFORM
None of these problems connected with appearance are readily remedied. Our prejudices and preoccupations run deep, and multibillion dollar industries have a stake in perpetuating them. Yet neither are we helpless to address some of the worst injustices, and, there are available that could push us in the right direction.
As a threshold matter, we need greater clarity about our goals. At the cultural level, a central priority should be to promote more attainable, healthy, and inclusive ideals. Our standards of attractiveness should reflect greater variation across age, weight, race, and ethnicity, and our grooming requirements should reflect greater tolerance for diversity and self-expression. Judgments based on appearance should not spill over to educational and employment contexts where they have no socially defensible role. More support should also be available for strategies that promote healthy lifestyles, which could also help reduce the weight-related concerns that prompt discrimination.
Law can assist that agenda by combating appearance bias and by providing greater protection from restrictive grooming regulations and misleading advertising claims. One obvious strategy would be to prohibit discrimination based on appearance that is not justified by substantial business needs. A fair and accessible dispute resolution process, with the potential for judicial review, could increase the likelihood that victims would raise concerns as well as minimize the cost of addressing them.
In the absence of specific prohibitions on appearance discrimination, some progress is possible through broader interpretations of current discrimination and disability law. When evaluating sex-specific grooming and dress codes, courts should take a realistic view of what constitutes disproportionate burdens on one sex, and should disallow rules that reinforce gender stereotypes, like the makeup requirement of Harrah’s Casino. Customer preferences should not constitute a justification for discrimination unless sexual attractiveness is a business necessity. So too, disability law should be interpreted more broadly and should encompass discrimination based on weight whether or not it involves extreme obesity with a physiological cause.
Law is, of course, only one of the strategies necessary to promote cultural change, and it is most effective when joined with other approaches. Litigation and policy initiatives can often raise public awareness about the appearance discrimination as well as the broader societal efforts necessary to address it. To achieve such reform, activists need to be strategic in how they coordinate legal, media, and political strategies. A textbook example is the work of fat activists in San Francisco after a local fitness center ran an advertisement featuring a space alien and a caption, “When they come, they’ll eat the fat ones first.” Protesters showed up at the center in alien costumes wearing signs that said “Eat Me” and “This Gym Alienates Fat People.” Activists also demanded hearings before the San Francisco Human Rights Commission to explore examples of discrimination. The result was enactment of the city’s ordinance prohibiting discrimination based on height and weight.
Another masterful coordination of legal and media tactics involved a sex discrimination suit by two former “Borgata Babes,” cocktail waitresses at the Atlantic City’s Borgata Hotel and Casino. Two “Babes” agreed, as part of their employment contract to keep a hourglass figure, and be height and weight appropriate.” The policy contributed to widespread eating disorders and related mental and physical health difficulties. Widespread media coverage led not only to a substantial settlement, but also to greater public awareness of the health issues at stake. The terms were confidential, but the impact was not. Commentators drew analogies to another celebrated lawsuit involving the Sand Hotel. There, a cocktail waitress successfully sued for sex discrimination after being forced to wear a revealing uniform and high heels, and being told that her job was to “sell sex.” That litigation prompted other Atlantic City casinos except the Borgata to offer uniforms including pants and flat shoes.
These cases underscore the possibilities for social change. Lawsuits, along with public protests, have made a difference. Workplace policies have been modified, legislation has been passed, and employees have been reinstated or compensated. Yet the full potential of law has yet to be realized. We need more explicit prohibitions of appearance related bias, and more expansive interpretations of existing antidiscrimination laws that could address it. Even if formal complaints remain infrequent, such legal mandates can play an important role in deterring and publicizing abuse, providing bargaining leverage for victims, and expressing social ideals. Beauty may be only skin deep, but the damages associated with its pursuit go much deeper. Only through a better understanding of the injustices of appearance can we fashion more effective responses.
Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford University and is the author of several books including In the Interests of Justice, Access to Justice, and Ethics in Practice.
Adapted, with the author's permission, from The Beauty Bias published by Oxford University Press, Inc. © 2010 Oxford University Press, Inc.
Further Reading Online
An editorial on this issue that Professor Rhode authored in the National Law Journal, 5-3-2010
An interview with Deborah Rhode at Concurring Opinions, 4-19-2010
Tags: Deborah Rhode, justice, Excerpts
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