The Brief: Law School News and Events

Life Experiences Can Color Justices’ Decisions, Says Greenhouse

Last March we marked the 20th anniversary of the Public Service program with a birthday party of sorts.
We called it Public Interest Week.

Linda Greenhouse covered the U.S. Supreme Court for The New York Times for nearly three
decades, winning a Pulitzer Prize in 1998. Here she meets with students to share her
observations about the Court.
Linda Greenhouse covered the U.S.
Supreme Court for The New York Times
for nearly three decades, winning a
Pulitzer Prize in 1998. Here she meets
with students to share her observations
about the Court.
On a dark night, police chased down a speeding teenage driver on a winding country road. The chase ended when police forced the car off the road, resulting in a horrific accident: the teenager was paralyzed.

Eventually, the teenager sued the police for violating his right to due process and the Supreme Court had to decide whether the teenager’s driving was so reckless as to warrant the use of deadly force.

For Linda Greenhouse, former Supreme Court reporter for The New York Times, the case exemplifies an under-studied aspect of judicial behavior — how judges know what they know.

How did judges determine that the teenager’s driving was a menace to public safety? They watched a video that been shot from a camera mounted on the police car’s dashboard.

Justice John Paul Stevens, however, dissented and argued that the driving was not reckless under the circumstances. He knew because he himself had learned to drive on similar back country roads.

A study based on responses to the car chase video suggested that even unambiguous evidence such as a video is subject to culturally-determined cognitive perceptions, said Greenhouse.

Dan Kahan, a Yale Law School professor, studied the reactions of 1,350 people to the video and found that the majority agreed with the court and tended to be white, male, and from the southwest.

Those that disagreed tended to be female, nonwhite, and from the Northeast.

As generalists, judges must often deliberate on cases that call on specific fields of expertise and to do so they base their conclusion on assumed facts, said Greenhouse.

But many cases, especially asylum cases, are thin on facts, said Greenhouse. Judges must presume that the decisions of the board of immigrations appeal are correct and can only set them aside if they are based on clearly erroneous findings. That standard, said Greenhouse, causes judges to lose sleep at night because they frequently feel at a gut level that the findings may be erroneous, but are not certain that they are clearly erroneous.

Some cases are so saturated with facts that judges don’t have to dig outside the record. But even then judges can review the same information and reach totally different conclusions, said Greenhouse.

Ledbetter v. Goodyear Tire & Rubber Co. was one such case in which “neither the facts nor the precedents were in dispute” but justices were divided over “how they understood the relevance of the precedents,” said Greenhouse. Justice Alito, writing for the majority, concluded that gender-based disparity in compensation is akin to other discreet forms of discrimination like termination and failure to promote and therefore the precedent that established a 180-day limit for overt discrimination was apt.

In dissent, Ginsburg argued that unequal pay was in a different category because of its hidden nature. Ninety percent of employers, including Ledbetter’s, did not publicly disclose salaries.

For Greenhouse, the difference in perspective could have resulted from the fact that Alito had been a government employee his entire career and was unaware of compensation practices in the private sphere.