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There has long been a debate on just how much judges are, or should be, swayed by public opinion. Justice Stephen G. Breyer of the United States Supreme Court said that listening to public opinion is “a road to perdition” for judges.
“We’re not there to be popular,” he added in a video that was posted on a public policy website, bigthink.com “We’re not there to decide according to the majority; we’re not there to decide according to what the press is going to write.”
Others, such as the Harvard law professor Michael Klarman have argued that certain landmark rulings like Brown v. Board of Education would never have been possible if judges had not been reflecting shifting social mores.
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Others, such as the Harvard law professor Michael Klarman have argued that certain landmark rulings like Brown v. Board of Education would never have been possible if judges had not been reflecting shifting social mores.
Brown would never had been needed if the Court had never erroneously issued the ruling in Plessy.
Moreover, it is the role of the Legislature to reflect changing social mores, the Supreme Court is explicitly supposed to be immune to shifting social mores.
PROFESSOR: "The law is reason free from passion." Does anyone know who spoke those immortal words? Yes?
STUDENT: Aristotle.
PROFESSOR: Are you sure? Would you be willing to stake your life on it?
STUDENT: I think so.
PROFESSOR: What about his life?
STUDENT: I don't know.
PROFESSOR: Well, I recommend knowing before speaking. The law leaves much room for interpretation but very little for self-doubt. And you were right. It was Aristotle. Good job.
I assume we can all agree that the #metoo movement should NOT affect the Cosby trial. Cosby’s guilt or innocence should not be decided on the basis of Harvey Weinstein’s behavior. No one who calls him/herself a “liberal” should dispute that.
“We’re not there to decide according to the majority" Except when it is convenient. Even when there isn't a majority, we can just make one up. We're there to achieve the desired results.
Re: Kevin:
PROFESSOR: "The law is reason free from passion." Does anyone know who spoke those immortal words? Yes?
Risibly untrue, but the sort of self-aggrandizing garbage lawyers feed themselves all the time, I suppose.
"I assume we can all agree that the #metoo movement should NOT affect the Cosby trial."
Everyone we're talking about in #MeToo did what he did before #MeToo started. Why should Cosby get a break? We're judging past actions by newly breaking (or newly acknowledged) standards.
Risibly untrue, but the sort of self-aggrandizing garbage lawyers feed themselves all the time, I suppose.
Elle Woods agrees.
"On my very first day at Harvard, a very wise professor quoted Aristotle, "the law is reason free from passion!" Well, no offense to Aristotle, but in my three years at Harvard, I have come to find passion is the key ingredient to the study and practice of law, and of life. It is with passion, courage of conviction, and strong sense of self that we take our next steps into the world. Remembering that first impressions are not always correct, you must always have faith in people, and most importantly you must always have faith in yourself. Congratulations Class of 2004, [more excited] we did it."
Everyone we're talking about in #MeToo did what he did before #MeToo started. Why should Cosby get a break?
Selective prosecution.
Everyone we're talking about in #MeToo did what he did before #MeToo started. Why should Cosby get a break? We're judging past actions by newly breaking (or newly acknowledged) standards.
For the same reason Article I of the Constitution prevents ex post facto laws.
What the law should do depends on women's feelings.
Direct action has priority over consequences.
"For the same reason Article I of the Constitution prevents ex post facto laws."
That's not a special Cosby provision. My point is that Cosby belongs in the same set of persons whose behavior in the past is subject to judgments made today.
The main difference is that most of the #MeToo people are getting punished without a court's becoming involved at all and Cosby is undergoing criminal prosecution. Of course, it's not actually an ex post facto law, since the statute had to be in place. The question of taking an old statute seriously when it hasn't been taken that seriously before raises fairness questions that correspond to the rule against ex post facto laws, which I take it is all you're trying to say.
My point is that Cosby shouldn't get special treatment. The prosecutor is getting a do-over because it was a hung jury, not an acquittal, and the prosecutor is trying to do something different in how to present the case.
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience."
One reason that people become Libertarians is because lawmakers are generally asses, who make bad law, so they hold all governments in contempt to some degree. Judges are also generally asses. So, I resemble this whole discussions about the canard that judges are supposed to be impartial because it shows your partiality to asinine politicians over asinine judges.
My point is that Cosby belongs in the same set of persons whose behavior in the past is subject to judgments made today.
I think it is a bad (and flawed) idea to judge anyone's past behavior by standards of behavior that didn't exist at the time.
That's one of the reasons why statues of limitations exist.
You also cannot ignore that the primary reason for the current prosecution of Cosby is because he strayed from the Progressive plantation.
Ann Althouse said...
"I assume we can all agree that the #metoo movement should NOT affect the Cosby trial."
Everyone we're talking about in #MeToo did what he did before #MeToo started. Why should Cosby get a break? We're judging past actions by newly breaking (or newly acknowledged) standards.
My standard has not been changed by the #MeToo movement. Can you prove the accused is guilty of the charge. Prove Cosby did slip roofies and he should be convicted and sentenced. That is tue now. It was true in 1978, 1984, 1993, 2006, etc.
My point is that Cosby shouldn't get special treatment.
I would argue that Cosby is getting treated worse because of his fame.
The prosecutor is getting a do-over because it was a hung jury, not an acquittal, and the prosecutor is trying to do something different in how to present the case.
Is this really the best use of the prosecutor's time and resources? Cosby will likely be dead before any sentence is served, possibly before the trial ends. How likely is he to re-offend? (if what he did is indeed an offense.)
"The main difference is that most of the #MeToo people are getting punished without a court's becoming involved at all and Cosby is undergoing criminal prosecution."
Yeah. We all are pretty much willing to believe a bunch of people accusing someone. Fire him!
That's very different from being willing to send him to jail. It's especially different if some of the accusers are a whole lot more careful in their words when they're in danger of perjury, sworn in in court.
Notably absent from Althouse's comments is the word allegedly.
I see we have skipped past the criminal prosecution phase and moved directly to punishment.
Good times. Good times.
The "ex post facto" feel of this prosecution is based, I suspect, on the elimination of statue of limitations for theses kind of sexual abuse offenses (in response I to the Catholic Church clerical abuse scandal). In prosecutions after 10-25 years the evidence is only "He said/She said" precisely because the claims were not pursued contemporaneously when physical evidence could be gathered and memories were fresh. The mob mentality makes it all the more likely that an unjust verdict will be rendered in such a case.
Ann Althouse said...
"Why should Cosby get a break? We're judging past actions by newly breaking (or newly acknowledged) standards."
Are you suggesting that what is or is not an acceptable practice in a court of law has changed because of what has been published in newspapers?
What I love about this movement is that it was from the get-go explicitly "GET TRUMP!," but instead of getting Trump it has instead gotten a passel of media personalities, Hollywood types, NPR executives, and such. I can think of only three who aren't liberal: O'Reilly, the late Ailes, and Kozinski. And Bill Clinton, who honestly belongs at the head of this investigation, is still untouched. OK, OK, Ken Starr put his Pepperdine-stained hands all over the man's life, and gave us that fabulous image of ML sucking Bill off on an Easter Sunday when he was on the phone to a Congressman about Bosnia. But does anyone here really think the tomcat didn't deserve it?
Due process is individual, not associative (e.g. diversity class).
Are you suggesting that what is or is not an acceptable practice in a court of law has changed because of what has been published in newspapers?
I think that she's suggesting that "standards have changed." But that means that they've changed for everyone. About the "court of law," I honestly haven't an opinion, because, as robother says, a lot of these alleged crimes are getting awfully old, and there's no evidence.
there's no evidence
There are presumably two witnesses, the accuser and accused. There are no other first-person accounts or forensic evidence. So, there is no independent corroboration of the allegation(s), and no cause to believe one testimony over another. In the interest of justice, the case should be dismissed for lack of evidence. That said, if it can be proven that the accuser has bear false witness, then the accuser should be subject to the same remedy that the accuser would face. In the interest of justice, and in order to preserve the integrity of due process, each party has to be at risk.
Why would it, other than by lack of virtue in guilt through association or prejudicial conviction?
#MeToo stands and falls on witch hunts and trials, but should follow due process in a civilized society. Also: #SheKnew #SheEnabled #SheProgressed, not limited to female chauvinists.
@Althouse said: "Why should Cosby get a break? We're judging past actions by newly breaking (or newly acknowledged) standards." Well, we shouldn't be in the Cosby case. There were no "standards" back in the day (however long ago it was that the events allegedly occurred) that said it was OK to drug a woman so you could have sex with her. Sure, get her a little tipsy, that was SOP ("Have some Madeira, my dear"), but not what Cosby is accused of. He was tried before the #metoo era. What's troubling is that the jury at this point in cultural time might say, Well, a lot of other celebrities have mistreated so it's likely Cosby did, too. The trial judge ought to give appropriate instructions to the jury to decide this case based only on the evidence in this case.
Try this hypothetical: Suppose your defendant is a Black man (Oh, he is!) accused by a White woman of sexual assault (Oh, he is!), and a lawprof from UMiss in 1955 asks whether it would be OK for the jury to be influenced by the fact that everyone in their society "knows" that Black men regularly assault White women? (See "To Kill A Mockingbird") My take would be that the lawprof is trying to get her students to think productively about burden of proof, jury bias, and judge's instructions.
We can't escape the zeitgeist because we are the zeitgeist. Socrates and, I presume, Aristotle believed that fucking underaged boys in the ass was an excellent way of relieving tension. Sexual mores are shaped more by custom and habit than by pure reason...... Those people who gave Roman Polanski a standing ovation at the Academy Awards are shaped by the zeitgeist even as they shape it. Time and the zeitgeist have not been kind to the defense of Woody Allen, Roman Polanski, and Bill Cosby.
Breyer's statement and Klarman's statement can both be true. And probably are.
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