FEBRUARY 9, 2017
FEDERAL CIRCUIT COURT JUDGES appear in public for brief oral arguments. They prepare and deliberate in private. They issue their judgments and explain their opinions in writing. And then they move on. Generally, they make no other public comment about the cases in which they are involved. Unlike the Supreme Court, they don’t select their cases. The cases select them in a process that is generally random. They enjoy life tenure, so they have no need to campaign and raise money. Except in unusual cases, their confirmation hearings get little media attention.
For all these reasons, the work and the significance of federal circuit court judges is not well understood. But judicial memoirs can give us glimpses into judicial power, which has no empirical measure.
What is the relationship between a judge’s experiences and the outcomes in particular cases? Why are some arguments persuasive to some judges, but not others? How much of judging is dictated by law and by facts, and how much comes from discretion, judgment, and experience? And where the result is not clear, what exactly guides a wise judge?
In the western United States, home to the Ninth Circuit, the largest federal appellate court in the country, these questions are more than academic. The Circuit spans all the states from Alaska and Hawaii to Montana and Arizona and includes more than 20 percent of the nation’s population. In the past decades, it has been the subject of repeated efforts — motivated in varying degrees by political and administrative concerns — to divide it into halves or thirds.
A caricature of the Ninth Circuit, at least in the 1990s, would show a hotbed of liberalism. Or maybe it would be a hot tub, to emphasize the perceived influence of California. One lively member, enjoying the jets and steam, would be none other than former Ninth Circuit judge William A. (Bill) Norris. With equal measures of charm, optimism, and insightful reasoning, he would be waving to his colleagues, calling on them to come on in.
Judge Norris — who died in January 2017, having published this book of memoirs in August 2016 — served on the Ninth Circuit Court of Appeals from 1980 to 1997 and was a leading lawyer in Los Angeles both before and after. His new memoir, Liberal Opinions: My Life in the Stream of History, catalogs his journey to the bench and beyond. Reading the book evokes nostalgia for the Greatest Generation and makes us pause and wonder, would a kid like him have the same opportunities today? Law firm leaders reading of his ability to combine public service with private practice may reflect, at least briefly, on whether the trade-offs our profession has embraced — focusing on profitability and billable hours at the expense of public participation, family, and the world beyond the desk — have been worth the sacrifice.
A son of English immigrants, Norris grew up in Turtle Creek, Pennsylvania, a small town in Allegheny County (which Hillary won in the 2016 election), and where a Westinghouse factory offered decent jobs to many in the community. His father, who had been a journalist in England, worked briefly at the local factory for several years after immigrating, before returning to journalism, which also became a passion for Bill.
“Adult supervision was not a very big part of our lives,” Norris writes of his boyhood community. But one teacher, the blessed Miss Chilcote, noted Bill’s intellectual spark and pushed him and a friend into academic classes. It was a perceptive nudge that led, after military service in San Diego, to Princeton (thanks to the GI Bill), and then Stanford Law School (which helped him financially when he and his young family were struggling).
After law school, where he was at the top of his class, Bill Norris secured a clerkship with Supreme Court Justice William O. Douglas. In one revelation, we learn that Douglas, like Clarence Thomas, remained completely silent for years on the bench during Supreme Court arguments. Douglas’s conduct went beyond merely keeping his thoughts to himself. Apparently, he would often spend his time during arguments working on drafting opinions for other cases.
But, regardless, he was kind to his protégés, including Bill Norris, and fed them his thirst for constitutional law and public participation.
Lawyers who care about justice and watch the courts tend to have cases or movements that resonate with them and motivate them in different ways.
Some today might find motivation in considering how the tiny ripples that started with gays and lesbians standing up for equality in their workplaces and communities have provided the building blocks for state constitutional protection for equal marriage rights and later, the historic Supreme Court victory in 2015 recognizing a federal right to marriage that extends to same sex couples.
Others might find it in the case of Lilly Ledbetter and the action of Congress to quickly restore remedies for employment discrimination when the Supreme Court took a wrong turn in interpreting Title VII imposing time limits on the remedial power of the statute that subverted the purposes of the law.
Others might find it in recent dissents that mark the need for organizing and action to reverse decisions that have damaged our democracy or that make it difficult for policy makers to enact legislation to protect their constituents from gun violence. Cases that come to mind include District of Columbia v. Heller (in which the majority limited the power of local governments to control lethal weapons); Citizens United v. FEC (in which the majority restricted the ability of Congress to regulate campaign finance); and Shelby County v. Holder (in which the majority voided key protections of the Voting Rights Act).
For Judge Norris, one case that inspired him and that he turned to for guidance throughout his career was Bolling v. Sharpe. In Bolling, a companion to the Supreme Court’s ruling in Brown v. Board of Education, the Supreme Court ruled that segregated schools in the District of Columbia violated the due process clause of the Constitution.
The significance of the case for Judge Norris, and for anyone who cares about civil rights, is that the Supreme Court found a substantive component to the concept of “due process,” rather than equal protection, which was the basis for the Brown decision. The challenge in Bowling was that the District of Columbia is not a state, and so the Equal Protection Clause of the Fourteenth Amendment, which protects against unequal treatment by states could not provide redress for overt racial discrimination in the public schools in the nation’s capital.
Enter the due process clause of the Fifth Amendment, which does not mention the word equality, but which prevents the federal government, which governs the District of Columbia, from denying due process of law. If the guarantee of “due process” can be used to end racial discrimination, then that provision protects more than merely procedural rights, such as notice and an opportunity to be heard before a court acts in a case.
Years later, Judge Norris drew on Bolling v. Sharpe when asked for guidance on the confirmation hearings for Robert Bork. Bork was a conservative judge who believed that the due process clause is merely procedural and that judges cannot use the clause to protect substantive rights not enumerated elsewhere in the constitution. For Judge Bork, this included protection of a right to privacy, including the right to use contraception.
A former law clerk of Judge Norris was working for Senator Arlen Specter, who was serving on the Senate Judiciary Committee at the time. Turning to Judge Norris for advice about how Specter might effectively question Bork during the hearings, it was Bolling v. Sharpe that provided the answer.
If Judge Bork accepted Bolling v. Sharpe, then perhaps his ideas of constitutional interpretation were not as rigid as many had thought. If he rejected it, he would in effect be arguing that DC schools ought to have remained segregated after the Supreme Court’s ruling in Brown v. Board of Education, a result that would be difficult for any reasonably pragmatic person to accept.
Bork apparently did not realize how tone deaf his answers would sound:
Q: How can you justify Bolling v. Sharpe applying the due process clause to the stopping of segregation?
A: I do not know that anybody ever has. […] I think that constitutionally that is a troublesome case.
Q: Do you accept Bolling v. Sharpe or not?
A: I have not thought of a rationale for it.
Norris is rightly proud that commentators have called the effect of this questioning “devastating,” noting that it “truly rattled Bork.” Bork’s confirmation never recovered. Next came an effort to confirm Douglas Ginsburg, which was also doomed. Finally, Norris got to play his hand not just to help defeat an opponent but to advance a reasonable alternative. A call from a friend then serving in the Reagan White House came, and Bill answered the call. The White House needed an acceptable alternative: “Remember, Bill, we’re talking about ours, not yours,” came the word, meaning don’t suggest a true lefty. Why wasn’t Anthony Kennedy on the list, Bill Norris wondered. And within days he was.
These events occurred in the late 1980s, when the Iran-Contra scandal was unfolding, and Reagan could barely bring himself to say the word AIDS, despite the scourge of the epidemic. The nation seemed about as polarized as it could be. Or so we thought.
Reading about this now, in the wake of the 2016 presidential election, feels entirely different than it would have felt just a few weeks earlier. Where are the moderate Republicans now who might phone a liberal judge in hopes of finding a moderate consensus candidate for the Court? Where are the Republican senators willing to hire the law clerk of a liberal judge and dig in on matters of constitutional principle when their party veers dangerously to the right? And how might the Twittersphere punish them if they tried?
Liberal Opinions is filled with other reminiscences, that can’t help but delight law geeks. What would lawyers give today to be a fly on the wall when the brilliant Shirley Hufstedler, home on maternity leave, was charged with teaching newbie Bill Norris how to draft a summary judgment motion? And how much adrenaline poured through his veins when Bill Norris entered the fray of a volatile State Board of Education meeting about school district boundaries to inquire with a beguiling air of the outsider, “Does this have anything to do with race”? What was it like to be in Judge Norris’s chambers when he was working on an early case challenging discrimination against gays in the military? How did it feel when the judge pointed to a footnote in Bowers v. Hardwick (upholding Georgia’s criminal sodomy statute) and instructed his law clerk that together they would “drive a truck through that footnote”?
But what is most important about Liberal Opinions is not grandstanding about reaching the right outcome. It is the motivation to make a difference and the impact that a little optimism, and a little charm, can have when wrapped around a whole lot of talent and hard work, and, of course, a few well-thought-out liberal opinions.