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Judicature 21

Judicial
facts are to make the necessary find- Chief Judge Smith, the Third Circuit
ings. And it’s not true in every system. ended up being ground zero for some
There are systems where the iden- fairly significant challenges around the

decision- tity of the party is what matters. If the

party is the government, then that’s
2020 election. Several cases came to
the Third Circuit and its trial courts.

making
the end of the story, and you don’t rule What was that experience like?
against the government.
Second, we believe in procedural D. BROOKS SMITH : Well, we don’t of

and civic
due process. It’s important that peo- course feel much drama ordinarily in
ple have a right to be heard, that before chambers, at least not in the usual sense
you decide a case, the various interests of the concept. But deciding cases that

education
____________________________________________
in the case are brought to light and the
parties have a chance to make their
view of the evidence and law known
may have a significant — even decisive
— effect on the outcome of an individual
state’s election required an all-hands-
to the people who will be making the on-deck approach in chambers. It was
decisions. Again, if you look around the an intensive period of time, and you’ve
world, not every system has that value. made reference to really what were
JEREMY FOGEL : This panel will look Third, we believe in the rule of law. two very important cases. I presided
at the individual judges making deci- Judges have an ethical responsibility to over both of those panels, but wrote
sions in individual cases: What we deal decide cases based on the evidence and only one of the opinions. Judge Bibas
with in that process, what are some of the law. Of course, judges can see facts wrote the other. Both of these cases
the pressures we face, what are some differently and have different interpre- were decided within a short period of
of the values we try to model and apply tations of the law, and they do so all the time, within a week or ten days of one
in making the decisions we make and in time. Both of those areas of variability another post-election.
doing the work that we do. We also will account for the variability in the kinds It was certainly a pressure cooker
talk about how we can do a better job of decisions that we get. in terms of time, and the filings were
of getting the message out about those The fact that we get widely dispa- coming in with a rapidity that almost
values, about what really makes the rate decisions doesn’t mean that those defied the ability to count them. There
judiciary work, and why judicial inde- decisions aren’t honest and made with was pressure to hear oral argument,
pendence is so important. integrity, nor does the reality of philo- to extend periods of time, all with the
There are three values that are sophical divisions mean that judges are eventual drop-dead date by which the
the bedrock of understanding an just making decisions based on their election needed to be certified. So time
independent judiciary. First, we are evi- political views. You still have to base it and the need to produce as respect-
dence-based. When we decide cases, on the evidence, you still have to base it able a work product as possible were
we decide them based on evidence, and on the law, and you still have to adhere the greatest pressures — not the exog-
we hear evidence to decide what the to the process of deciding cases. enous pressures of the importance u
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22 Vol. 105 No. 2

The pressures that we felt were that it is our job to get it right. That
may result in a different ruling for one panel as opposed to another,
one judge as opposed to another. We absorb as much as possible of
the applicable jurisprudence, get an entire understanding of the
record that’s applicable, and we make our best call.

of this case nationally. I’m certainly pithy opinion that no matter how any way talk about a written opinion,
not suggesting that this was just any important or consequential the case is, which speaks for itself. But I will say,
other case. But the pressures that we you still have to have evidence to sup- because it’s in the public record, that
felt were that it is our job to get it right. port your claims. And Judge Matthew the opinions by Judge Bibas and Judge
That may result in a different ruling Brann wrote a longer opinion, but he Brann made clear that what was not at
for one panel as opposed to another, made the same ultimate point — that issue was massive fraud. Judge Bibas
one judge as opposed to another. We you can’t simply say the sky is falling, says, “To start, note what it does not
absorb as much as possible of the there has to be some evidence that the allege — fraud.” That’s not, however,
applicable jurisprudence, get an entire sky is falling before you come before a what was said publicly about the case.
understanding of the record that’s court and seek relief. Impeaching the decisional process by
applicable, and we make our best call. When I read those opinions, I public statements of that kind cer-
thought, “These are two very con- tainly is unworthy of advocates who
FOGEL : But when you think about servative judges, both applying the are members of the bar. They don’t
the way the story was covered in the rule of law as straight as it can be contribute to public confidence. Public
mainstream media, the idea that this applied.” That is the essence of judicial confidence is much of what we are
was really a big case, and it could lit- independence. talking about here today as an over-
erally change the outcome of the arching area of concern, and it’s the
election, what you just described was a SMITH : It is. And I certainly was very basis to support what we do every day.
very ordinary businesslike approach to proud of our court. Judge Bibas said it
doing your job. so beautifully in the first few sentences FOGEL: These cases really reflected a
of his opinion: “Free, fair elections commitment to a certain process, a cer-
SMITH : The general public does not are the lifeblood of our democracy. tain set of values the judges involved all
fully appreciate the process. In a pro- Charges of unfairness are serious. made a tremendous effort to adhere to.
cess sense, we went about this in But calling an election unfair does not Brooks, you commented to me earlier
precisely the way we would have gone make it so. Charges require specific that “the center held. The courts did
about any case that came to us, except allegations and then proof. We have their job.” And that’s really an excellent
that both decision timelines were neither here.” Judge Brann similarly description of what happened.
expedited. wrote, in great detail and with enor- Thelton, you were one of the first
mous patience, in the District Court for African American judges in the coun-
FOGEL : What resulted were some the Middle District of Pennsylvania. try. You had the same commitment to
pretty remarkable opinions. Judge I have never made it my practice the same values as we’ve been talking
Stephanos Bibas wrote a short and to speak dehors the record or to in about, but you had a different life story.
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Judicature 23

How have those things inflected? Every- here. Prop 209 was an anti-affirmative life experience will give them different
body’s trying to apply the same principles action initiative that California voters perspectives. And that’s how we get
and values, but you get very different passed. The main issue I saw is whether the variety that we get.
results sometimes because of the dif- the burden imposed by Prop 209 nec-
ferent life stories that people have. essarily falls unfairly on minorities and HENDERSON : It is. Shortly after I was
women. We did as much research as we confirmed, one of our senior judges in
THELTON HENDERSON : Being one could. We looked at everything. I found an employment discrimination trial
of the first Blacks on the court, one a 1981 Washington Supreme Court case came down for lunch. I said, “How’s the
of the first things I noticed was that that said an initiative in Washington trial going?” He said, “It’s very interest-
there were some different expecta- prohibiting school boards from order- ing. The plaintiffs testify today. They
tions for me than the attorneys had ing busing to solve desegregation was were saying that in the locker room
for my colleagues. I would get motions unconstitutional. I used that as the [where employees changed clothes]
for my recusal from counsel, and the main precedent. that some of the workers were paint-
argument would be that, “This is a dis- Once I did that and looked at all of the ing the n-word on their lockers and
crimination case. All due respect, your other cases, I decided that Prop 209 had around the locker room, and they were
honor. You’re Black, and we very gen- a likelihood of being found unconstitu- hanging baboons over the pipes.”
tly want to say we don’t think you can tional. I look on that case with a lot of This was a good friend of mine and a
be fair in this kind of a ruling.” hindsight, a lot of regrets with the way fine man, a fair man. And he said, “You
I’d say, “Well, if I recuse myself, I’m it went, because it didn’t take the usual know, I don’t know why they feel they
the only Black on this court — what path of an appeal up to a three-judge have to exaggerate like that. They’ve
will happen to the case?” “It’ll go to one panel. It went to a motions panel on got a good case.” All I could think of
of your colleagues, your honor.” And the Ninth Circuit. My long-term inten- was that I grew up hearing my father
they’re white. And I would say, “Tell me tion was to have a hearing on all of this, and my uncles tell those very kinds of
why you think they can be fairer in a and have some testimony before I pro- stories about the workplace.
discrimination case than I can.” ceeded. But we never got to that point, The difference between this man and
It was a challenge. On more than one because this panel essentially killed me is our experience. We bring some-
occasion, an attorney would walk into the case there. thing different to the bench. And I
my chambers, and I’m sitting there at readily recognize that kind of discrim-
the table, and then I’ll look up and say, FOGEL : What was their rationale for ination, whereas another party would
“Yes, what’s going on?” And the attor- doing that? have a hard time getting this particular
ney would say, “Well, where’s Judge judge to recognize it.
Henderson?” HENDERSON : They thought I had
ignored the main public presentation FOGEL : Dahlia, you used to work in
FOGEL : One of the more notable cases of what the case was about. The state the courts, and you’re now a journal-
you had was the Proposition 209 case, claimed this was an anti-discrimina- ist who covers the courts. This idea of
an initiative passed by the voters of tion case, that affirmative action itself what judicial independence is and how
California to abolish affirmative action. discriminates against non-minorities, we talk about it — how do you see this?
Talk to us about how your life experi- and that this was a statute to prevent
ence and the rule of law intersected for discrimination. DAHLIA LITHWICK: I’m really struck
you in that case. by one amazing tension between what
FOGEL : We certainly see echoes of we just heard from Chief Judge Smith
HENDERSON : It was a very contro- these arguments today, but it’s also the and from Judge Henderson, and that
versial case. I was getting calls from case that, based on evidence, you’re is this amazing quality of the judge
attorneys and from reporters. Actually inevitably going to have situations doesn’t matter, the identity of the judge
I had two law clerks at the time, and where judges will look at the same doesn’t matter, the system is the sys-
it was very rare that I would call both case, the same exact proposition, and tem, and the rules are the rules — and,
law clerks to work on a case, and push they’ll see it quite differently. They’ll at the same time, as you just heard so
everything else aside, but I did that have different starting points. Their eloquently from Judge Henderson, of u
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24 Vol. 105 No. 2

course who the judge is, the judge’s rule of law, and ethical consequences. how it changes things, only to have
experience, matter immensely. So what But you still have to talk about the your editor say, “That was so four days
do you do about the fact that in some particulars, and each one of those par- ago, we’ve moved on.”
sense, we want to tell one story about ticulars has nuances to it. Thelton just But the courts were being misun-
the judiciary, which is these are umpires, shared with us exactly how fraught derstood and misrepresented by the
to use Chief Justice Roberts’s construc- fact-finding can be, because we’re press since the founding. And it’s really
tion, and at the same time, as you just bringing our life experience to the easy to say the press now is spectacu-
heard from Judge Henderson, who you process of fact-finding. What we are larly apt to get it wrong, but the press
are and how you think matters? willing to believe, what significance we was always spectacularly apt to get it
It’s really, really hard to hold both attach to things, all of that is affected wrong, to misrepresent, to sensation-
ideas in your head at the same time, by who we are. The same goes for how alize, and to distort.
and I say this as somebody who cov- much procedural process we give peo- What worries me is that the press
ered the Supreme Court for 20 years. ple. Everybody has a basic right to be has lost the ability to do something
Every time I wrote an article my editor heard, but what does that extend to? that takes an immense amount of time
would say, “Put in who appointed the Does that extend to listening skills, to do well. I think the Supreme Court
judge. That’s essential information.” how much time do you give people, press corps continues to be the most
And I would always have this fight how much allowance you make for sober, thoughtful, reflective press
because I know that who appointed people who, for instance, are unrepre- corps I’ve ever seen. But the vast bulk
you tells something about who you are sented? Where are the lines? When has of Americans don’t read from Adam
as a jurist, but it actually tells much less a judge simply gone too far and become Liptak and from Marcia Coyle and
than my readers think. unhinged from the core values? from David Savage anymore. They
Keith Bybee wrote a book called All None of those things are tweet- read third-hand sources on Facebook,
Judges Are Political, Except When They able. And yet, it’s not like the other TikTok, and Instagram. And the
Are Not: Acceptable Hypocrisies and the branches. A book I really like about this extreme specialization around court
Rule of Law. That is the best encapsu- is Courting Peril by Professor Charlie journalism has almost completely
lation of how you tell this story, that Geyh from Indiana University. He become irrelevant.
simultaneously the judiciary is an inde- essentially says the same thing, that
pendent branch, but at the same time, we’re not going to convince anybody FOGEL : What can the judiciary do to
there are personal and political and by calling it an impartial umpire call- begin getting a better understanding
biographical valences. We have to fig- ing balls and strikes, because nobody of this judicial culture out to the world?
ure that out, particularly in the press, believes that. But it’s equally untrue
where there is such a strong impulse to that judges just do whatever they HENDERSON : One thing is that we
just tell the political story. We have to want. And even the chief has said that can get a better view of who we are.
do very — if we’re doing our jobs cor- umpires have different strike zones. I was always a bit distraught when
rectly — complicated work very fast. a colleague would say, “Oh, we have
But how do we help the public under- LITHWICK : There’s such a tendency this kind of a case,” or, “We have a pro
stand that both things can be true, and to blame the media, and part of that per case. I gave that to one of my law
also that the judiciary is just not going is right. In the two decades I have school interns to handle, and I have a
to be subject to the same metrics of a covered the courts, we’ve gone from big case here, and my clerks and I are
purely political story? How do you con- having eight hours to read and digest going to work on it.”
vey that something is something and an opinion, four hours to write about I tried to make certain that every-
also its opposite at the same time? And it, three layers of editors to read it, one who came into my court felt that
how do you do that, at worst, in a tweet? somebody to fact check it, and time to they had a fair day in court. I would call
post it, to quite literally having no time. them; I would listen. Very often, these
FOGEL: I don’t think it is something The media doesn’t work as it worked pro pers just want a fair hearing. You
you can do in a tweet. We have these before. You might want that long, can explain to them, “Well, you don’t
three core values: evidence-based pro- reflective piece about what the second really have a cause of action, and I’m
cedural due process, adherence to the Affordable Care Act [ruling] held, and going to dismiss this, but let me tell
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Judicature 25

you why, and let me spend some time to be a good listener, and you need to mine when I was the district attorney.
with you.” I can’t tell you how many be a good communicator. We were at sidebar after some dispute.
thank-you notes over the years I’ve And there was passionate argument on
gotten from the losers saying, “Thank HENDERSON : Absolutely. both sides, and my former assistant said
you so much for hearing my case.” to me, “Well, that’s not what your view
That puts the word out that we’re FOGEL : You need people to feel that, was when you were in this office.”
not robots. I mentioned a robot because in that moment, you care about them, I said, “You’re damn right it isn’t,
that’s the only way, to stay with the and you’re trying to understand what’s because I’m not in that office anymore.”
umpire analogy, you’re going to get a bringing them to court. Judges have Sometimes you can learn from experi-
true calling of whether a ball is a strike an opportunity to do that every day, ences that will necessarily dictate a
— is to have a robot. But we’re humans, through their demeanor and the pro- different result than what some might
we’re doing our very best, and over the cedural process that they observe. intuitively expect is going to be your
long haul, this system works. I proba- result. It’s not a deterministic process,
bly have been seen over the years as a SMITH : We do have, for lack of a bet- necessarily, based on what your expe-
critic of a lot of things in our country, ter characterization, a product to sell, riences are.
especially as they pertain to race and a story to tell. The federal judiciary is
class. But we really do have a good sys- a system almost devoid of corruption. FOGEL: Both Thelton and Brooks have
tem, and we need to let that be known. I’m very proud of that as an American talked about doing the job in a way that
We are really doing our best. It is fair. and as a federal judge. I think too many conveys fidelity to these values and
It’s not corrupt. You may not agree that critics of the judiciary tend to overlook conveys respect for people who are
that ball on the outside corner was a one thing, and that is that whatever appearing before you. But is there some
strike, but it was the best call that that justice is — whatever it is we are doing value in taking it further, being more
guy could give, and he wasn’t cheating. that we call judging — has a huge aspi- proactive, being more public? You have
rational component to it. the code of conduct, of course. You can’t
FOGEL: You’re really talking about Do we have these biases? Hell yes. talk about cases. But you [can] educate
each judge educating in the court- Can we rid ourselves of all of them? the public about the legal system. In
room. In addition to being a good Absolutely not. But we can aspire to. fact there’s an affirmative endorsement
legal analyst and a good writer and When I was a state trial judge, I heard of that in the code of conduct.
the obvious things that judges have a murder case, and it was being tried by But in my experience, judges are
always been expected to do, you need someone who had been an assistant of reluctant to talk to the media. Even u

We do have, for lack of a better characterization, a product to sell,

a story to tell. The federal judiciary is a system almost devoid of
corruption. I’m very proud of that as an American and as a federal
judge. I think too many critics of the judiciary tend to overlook one
thing, and that is that whatever justice is — whatever it is we are doing
that we call judging — has a huge aspirational component to it.
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26 Vol. 105 No. 2

when I was sitting, I talked to reporters solution, but I think it gets you part of shoving it aside because it doesn’t go
about process and what was going on the way there. into the merits of the ultimate ruling.
in the courts — off the record, not for Judges are often too distant. I can’t
attribution, but by way of background, FOGEL: I had a number of very con- talk about this, I can’t talk about that,
and a way of educating and building up troversial cases when I was on the and not humanizing themselves, even
some kind of relationship. Given where district court. I was getting the pre- to the press. I got along well with the
we’re at right now, and given the lim- and post-decision emails and phone press, and I enjoyed it. Be aware of the
itations of the media that Dahlia was calls and everything else. When I ethical guidelines, and don’t talk about
discussing earlier, should the judiciary wrote those opinions, I usually would confidential things. But there are ways
be doing more? start with a paragraph or two just say- to relate to the press that would bene-
ing I understand that this is a huge deal fit our image in many ways.
LITHWICK: When I talk to judges, in the court of public opinion. Here’s
almost unerringly now they say some my job. My job is not to resolve those SMITH : I agree wholeheartedly with
version of, “When I first came to the kinds of moral and political conflicts, Thelton that we need to do more.
bench, there was one dedicated court my job is to figure out what the facts Numerous courts have had programs
reporter, and she’d been on the beat in this case are and figure out how the called “Judges and Journalists” pro-
for years, and she knew the marshals, law applies to them and here’s what grams. They need to be interactive,
and she knew the bailiffs, and she that process gets me. and they need to allow journalists and
understood the difference between an So starting right out, it was a way to judges to share with each other the
arraignment and a sentencing. And own the fact that someone was going challenges they face. I’m confident that
now what I have is the guy who read to write about the case and say, “Well, doesn’t compromise any of our ethical
the weather last week, and next week he is a Clinton appointee, and therefore proscriptions, and I think it can result
he’s going to be hosting the baking seg- he did X.” in some ongoing relationships that can
ment of the show and make cupcakes. So I would recognize the context in be mutually helpful.
They don’t understand the system. I which the case is arising, but clarify
have no relationship with them.” that the case is about this much nar- LITHWICK: One of the themes really
All of that is true. The era of the rower, discrete legal issue. People are being reinforced is that journalists and
dedicated court reporter is over. It’s going to think that I’m commenting on judges have incredibly congruent inter-
not coming back. But judges can find this other stuff, so I’m going to make ests. And that there is a way for this
a way to open that channel, and to be very clear right now, I’m not comment- to be Pareto optimal, or there is a way
resources, to help some reporter who’s ing on this other stuff. for this to be adversarial. A lot of the
got a filing deadline in two hours and Judge Bibas actually took that on in anxieties surrounding judicial indepen-
quite literally doesn’t understand the his opinion. The first paragraph that dence are the same anxieties we in the
difference between a civil trial and you read earlier, Brooks, that’s essen- press have about failing trust in institu-
a criminal trial. I realize that’s com- tially what he was doing: Here’s how tions and destabilized notions of truth
pletely unreasonable to burden the we got here, now here’s what the and truth finding. Rather than starting
judiciary with this obligation. But bar- record shows, and here’s where the from this oppositional view, we need to
ring that, what rushes into the vacuum law takes us. What do you think about understand we’re almost completely
is politics. judges doing this more consciously? aligned and work from there.
The journalistic credo here is “show,
don’t tell.” By simply showing, we are HENDERSON: I think it’s well advised FOGEL : There’s a truth-gap problem.
doing excellent, nonideological, non- to do so, and I do it often. I will explain: We’re in a society where a significant
partisan work that speaks for itself Here’s what I’m doing, here’s what I’m number of people don’t read newspa-
within the four corners of the opinion. trying to achieve, and here’s the way pers. They don’t believe that the courts
That goes a long way to achieving the I’m going about it. And also, here’s are worthwhile. They believe a lot of
outcome you’re asking about. I guess what I’m not doing. Here’s what I’m not stuff that’s very antithetical to what
I’m saying kill them with boringness. It considering, although I understand it we’re talking about. Is there anything
sounds like an incredibly unsatisfying has a place in here somewhere, but I’m we can do about that? This whole con-
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Judicature 27

One of the themes really being reinforced is that journalists and

judges have incredibly congruent interests. . . . A lot of the anxieties
surrounding judicial independence are the same anxieties we in
the press have about failing trust in institutions and destabilized
notions of truth and truth finding. Rather than starting from this
oppositional view, we need to understand we’re almost completely
aligned and work from there.

versation that we’re having is great there’s still an election campaign going heard it said that in the next two, three
if you’re already part of the group of on. This is disturbing. The denial of years, any news that you’re not paying
people who believes in evidence and some things that we all know to be fact, for will be fake. We’re going to have deep
so forth, but one of the real structural hard-bound fact, is very troublesome. fakes, we are going to have the ability
problems we’re facing in the country And I’m not sure that we as lawyers and in a very short amount of time to have
right now is that a lot of people do not judges are professionally equipped to videos that we cannot discern whether
live in that world. deal with the underlying — I’d go so far those are true and not true.
The other side of that same coin as to say in some cases — pathology that Jeremy has heard me tell this story of
is another question about whether leads to that sort of denial. I truly don’t how we were living in Charlottesville
there’s a role for judges to talk about know what to do about it. On the other in 2017 when the Nazis marched, and
some of the inequalities in society, to hand, I certainly don’t want to give up my then 11-year-old son said to me,
talk about racism, to talk about sex- on it. And I think we need to continue “What do you do? If you go out and
ism and gender bias, to talk about bias to do as much civics education as we you fight them on the streets, you lose.
against LGBTQ people, and so forth. can participate in. Maybe we need to If you stay home and ignore them,
That’s a tough one, given the ethical be very careful about our terminology: you lose.” Any engagement or lack of
canons. But it’s one that came up with Instead of talking so much about the engagement seems to get you to the
the Floyd murder, and actually some concept of judicial independence, which same place.
courts did speak out. It’s two different may be misleading, let’s talk about the What do you do? Do you tell people
questions, but they seem to me related rule of law and what that means. who are lying about the outcome of the
to each other. elections cases that they’re lying? No,
Let’s start with the first one: What FOGEL: There is a culture, there is a you can’t engage with it. But ignoring
do you do with the fact that there’s a code of conduct — not just the ethi- them also allows it to live in the world.
significant percentage of our body pol- cal code of conduct, but a code of how And I think the paradox is that people
itic that’s just hostile to institutions, judges make decisions and how judges are starved for adults. They are starved
period? Is there anything we can do analyze things — that judges have for institutions. They are starved for
about it? aspired to follow for 200-plus years, norms. Part of the solution is to bol-
and we need to make that point better. ster norms, to bolster basic adult civic
SMITH: Outlive it. I don’t know. I don’t behavior, to understand that there’s
want to get partisan, but there is all too LITHWICK: I hate to be the bearer of something being modeled here that
much evidence out there that suggests bad news, but it’s going to get worse. I’ve people are absolutely starved for. u
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28 Vol. 105 No. 2

FOGEL : I can feel the discourage- think the public understands this. If who could not have been more differ-
ment and the concern people have, and Thelton Henderson does something ent, really took each other as being
it’s totally justified. Things have been that they think is stupid and unfair and first and foremost in good faith.
pretty awful in this context. I can say biased, that’s not the end of the world. If you assume that you’re starting
that doing something to push back There’s another court that will review with facts and law and evidence, all
against it in the way that you described, it, that will have more time than I had, the disagreements in the world are
Dahlia, has helped me deal with that and will get it right. And if they don’t orthogonal to that. Law really is one
in my own life. Is it going to be effec- get it right, there’s yet another court. of the very few places we can say that.
tive in changing things? I don’t know. The public needs to know that there’s a It’s tethered first and foremost to the
But if you’re putting good energy back process. It really is inherently built for presumption of truth and the pre-
into the world, if you’re putting truth fairness and correcting along the way. sumption of good faith. And then we
back into the world, if you’re support- One of the first things I tell my clerks can fight about everything else.
ing institutions that you care about, it is that we should all take great comfort There are very, very, very few pro-
doesn’t hurt to do that. And I think it’s in that. The public needs to know these fessions that model that better than the
better than being completely passive. kinds of things, and I’ll repeat myself by American justice system, and I think at
When the events occurred in saying that I think that all of us, given this moment, people are starved to see
Minneapolis and in Louisville last year, the state of conditions now, should that model. We have to let it shine. And
I felt it was important to say some- think about spending a little more time if that means talking to civics groups,
thing, and there were about half a talking to civic groups and humaniz- if it means taking calls from annoying
dozen state courts chief justices who ing ourselves, and leaving that group baby reporters and explaining for the
made statements. There were three saying, “God, that guy or that woman 400th time, all of that I think matters
state Supreme Courts that made for- really represents fairness there, and I now more than ever.
mal statements, saying we’re not need to look at this differently.”
talking about individual racism or FOGEL : There’s a kind of cynicism,
individual anything, we’re talking SMITH : We need to spread our mes- or sense of desperation or sense of
about our history. That our country sage, and our message is that we are despair, that we feel at times. Last
was founded on inequality, and there about law. As Justice Scalia has said, year was a tough year, with the virus
are still ways in which inequality per- “The rule of law is the law of rules.” and with the political environment and
sists. And we as courts and judges It struck me when I read just a week- everything else. But to be able to tell
need to recognize that those struc- end or so ago the recent book that John the good story that we have to tell is a
tural factors are present. We still have Boehner has published. One sentence really, really powerful tool and should
to decide cases exactly the way we’ve really caught my attention: He writes, not be underestimated.
been talking about. You determine “Anybody who says there are rules to
facts, you give people due process, and the political game is probably not very
you apply the law. That doesn’t change. good at playing it. Rules can hem you
But the lens through which you look in.” That’s the political game. That’s not
at it has to change. I mean, people of what we’re about.
color could not serve on juries, women
could not serve on juries, well into the LITHWICK : In the weeks after Justice
20th century. Scalia died and then again in the weeks
after Justice Ginsburg died, the thing
HENDERSON : I have always taken I was asked most frequently in media
great comfort in the fact that there’s a appearances was about the nature of
Ninth Circuit appellate court to review that friendship. Everybody thought
my mistakes. And I make mistakes, it was pretend, that it was put on for
and I’ve never met a judge who was on optics. I will for the rest of my life say
the court for any length of time who that was an authentic friendship, in no
didn’t. And you get reversed. I don’t small part because these two people,