Equal Justice for All is Possible with Robert Tsai

Episode Notes

Transcript

Robert Tsai:

On criminal justice issues, there’s quite a lot of things that can be done. You can really spotlight certain things that people haven’t noticed. By bringing cases you can uncover lots of things that have been hidden. Hidden discrimination, hidden patterns. The fact that judges in some of these small counties run their courtrooms like fiefdoms, they don’t let black people serve on juries. You can uncover a lot of stuff through litigation. Can you fix that? Probably not. That’s going to require something more than court center legal liberalism.

Announcer:

That’s today’s guest on SideBar. Robert Tsai, author and professor of law at Boston University School of Law. SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Law Deans Jackie Gardina and Mitch Winick

Jackie Gardina:

Mitch. Sadly, we have spent too much time talking about judges and lawyers behaving badly and it’s been a bit demoralizing. I’m so pleased that today we get to discuss what actually drew me to the law, the idea that you could use the law in courts to create positive change. I remember reading Root and Branch, the book that described the legal strategy that led to Brown v Board of Education and the end of legal segregation schools. I was hooked. I knew I wanted to be a lawyer.

Mitch Winick:

Jackie, as we’ve discussed before, I grew up in the segregated south and also experienced the political and social upheaval of both the Vietnam War and the Watergate era where I was alarmed by the uncertainty of our democratic process. Like you, I saw the role of lawyers and the law as fundamental to the protection of our system of government and our individual rights, our guests. Today, Robert Tsai not only shares many of the same beliefs that you and I have about the importance of the rule of law, but he has been a prolific scholar on issues of political culture, voting rights, constitutional change, democratic design, inequality, and popular sovereignty. Robert is the professor of law and law, alumni scholar at Boston University School of Law.

Jackie Gardina:

Robert has authored four books, practical Equality, forging Justice in a Divided Nation, America’s Forgotten Constitutions, defiant Visions of Power and Community, eloquence and Reason, creating a First Amendment Culture and His Most Recent Demand, the Impossible One, lawyer’s Pursuit of Equal Justice for All. Robert, welcome to SideBar.

Robert Tsai:

Thanks for having me.

Jackie Gardina:

Now, Robert, your book Demand the Impossible uses the career of Stephen Bright to describe the anatomy of legal and social change. We want to talk about both, but let’s start with Stephen Bright. Many of our listeners are not steeped in the law or legal history, so let’s just begin with the basic question. Who is Steven Bright and why did you choose him as a protagonist for this story?

Robert Tsai:

I wrote this book really to try to introduce him as an incredibly skillful lawyer, both before juries where he really enjoys being, but also he teaches himself to be an appellate advocate and it’s very difficult to be able to do both of those things pretty well. But he also in a way, was in the right place at the right time. Jackie Mitch, you both mentioned being inspired by the cause lawyering during the period in which this country went through desegregation. There’s been a lot of recent interest in the dynamics and the politics of mass incarceration, and I really thought that he would be kind of a wonderful and illuminating figure whose career could help us to understand that period of time because he ends up going back, he feels called to return to this deep south and to take over a public interest organization that really is there in the eighties and nineties when a lot of these policies are being formulated across the country, these harsh criminal law policies, and he’s both trying to improve those conditions in prisons and jails, in the courtrooms, even as he is representing people who are thrown on death row one after the other.

So that’s why I decided to write about him and things fell together so that I felt like I could tell the story. Right.

Mitch Winick:

The book reads like a legal thriller focusing on four death penalty cases that he argued before the Supreme Court, and importantly during the time that the court was changing fright had a long and distinguished career. I suspect there were a lot of different ways you could have told this story. Share with us why did you choose those cases as the framework?

Robert Tsai:

Yeah, so he’s also remarkable in the fact that he argued four times in front of the US Supreme Court and most people, if they have one chance in their lifetime to argue before the high court would see it as a huge feather in their cap. And so he is one of these rare people who got to argue four cases and he was able to win all four, which is all the more striking and unusual. On top of that, each time he represented someone who was poor, charged with committing a terrible crime who had been given the death penalty by a jury of peers, and so the odds are very long that any court is going to reconsider what happened to the defendant. He really chose cases, at least he said yes to cases that went on appeal raising the kinds of issues he was most committed to throughout his career, and those issues involved racial discrimination in the criminal justice system, the poor quality of lawyering that indigent people are often saddled with, especially in places like the Deep South. Also, what happens to people who are intellectually disabled or at least have something going on mentally, intellectually that could raise some question about what is the proper punishment for such a person? So these are the kinds of cases he tended to take pretty consistently over the course of career, and they also happen to show up in all four of these cases.

Jackie Gardina:

I have to say that you succeeded in making it accessible and just want to emphasize one thing that you’ve talked about, which is this idea that it’s very unusual for a case to be both tried by an attorney and then go up to the Supreme Court with that exact same attorney. What we see instead are specialists who are before the Supreme Court all the time, they tend to be part of the same small circle of people. So Bright was really out of the ordinary in that sense, and there’s a line at the very beginning of your book that brought that home to me instantly, and I just want to read it because I loved it when I read it, which is Bright who represented James McWilliams stood up and buttoned his jacket, one that he had picked out in a thrift store, and it just kind of stood out to me that he was unusual in so many ways, but you don’t normally think of someone standing before the Supreme Court in a jacket that they picked out of a thrift store. So just that kind of little detail in that sentence is the kind of writing I think that made this so wonderful and accessible. So you and your editor did a great job of putting it together and telling a story.

Robert Tsai:

I really enjoy working with my editor and I trust him a great deal, but it was a kind of a dance back and forth, but luckily he appreciates those kinds of details like the one that you mentioned, and there were so many ways to try to convey to a reader that Steve Bright was the kind of person that very much tried to live his values. He was someone who had decided to spend his whole life representing poor people. It mattered to him that he wasn’t wearing $2,000 suits and shiny leather shoes, as well as the fact that he usually drove a pretty rickety car that was product of a donation we’re the ways that we really try to convey his level of commitment. I do think that he’s quite a remarkable historical figure, but he’s also quite a hoot. He has a wicked sense of humor even though he’s dealing with some of the hardest and most excruciating issues that any lawyer could really be asked to deal with the way he goes after judges that he thinks is falling down on the job, the callous to the suffering of poor people, prosecutors who might be engaged in racial discrimination, the picking of juries,

Jackie Gardina:

Let’s move to the substance of some of the work that he did. Bright relied heavily on the 14th Amendment equal protection clause in his arguments before the court, especially around racial representation on juries and the disproportionate impact of the death penalty on black men. In particular, the current court appears to be remaking the 14th Amendment Justice Roberts famously and one could argue Nonsensically stated, the way to stop discriminating against race is to stop discriminating against race. Do you see these recent cases undermining the foundation that Bright worked so hard to build?

Robert Tsai:

I do think that the 14th Amendment still plays a role here, but it may be that more of this is going to have to take place outside of the courts. It’s not going to be single cases that really lead us to any robust answers. So for example, if the issue you’re concerned with is continued whitewashing of criminal juries, particularly when someone is accused of serious crimes, I don’t think a single case going to solve that, but there are reforms that are being pursued in a number of states that are very interesting to keep an eye on.

Jackie Gardina:

We are going to take a brief break to hear from our sponsors when we return. We will continue our discussion with Robert Tsai about the Supreme Court’s decision to use the shadow docket to decide death penalty cases.

Advertisement:

Kaplan helps thousands of law students become lawyers every year. Prepare to pass your bar exam with personalized prep that fits how you learn best. Choose from a traditional two month course of flexible three month course or semester long prep and get your personalized study plan, which includes thousands of realistic questions and unlimited essay grading. No one does bar review like Kaplan find theBar review that fits you best so you can score your best visit cap test.com/bar. That’s KP test.com/bar.

Discover how legal trends interact with the wider professional world At the colleges of law. Practicing lawyers and professionals who work closely with the law can advance careers or gain specialized expertise in business operations, entrepreneurship, emerging law and legal technology. We offer individual courses, professional certificates or a master in business law and technology degree achieve your goals at any stage of your career. Learn [email protected].

Mitch Winick:

Robert, before we leave the topic of the Supreme Court, the Supreme Court’s deciding more and more death penalty questions, even difficult ones like those Thatright argued on its shadow docket. We had Steven Vladek on our program to talk about the shadow docket and as he helped us understand this means that there’s no briefings, there’s no oral argument, there are no written decisions explaining the outcome. One consequence of this approach is that the courts not providing the lower courts or any of the rest of us for that matter with any guidance. They simply don’t know. We don’t know why the court upheld or overruled a stay of execution determined on the shadow docket. How does the court’s approach to death penalty cases on the shadow docket affect the next generation of death? Penalty advocate work

Robert Tsai:

In those cases where other courts have disposed of death penalty issues, say for example, reversed the grant of rid of habeas corpus, the 11th circuit, I talk a little bit about this in my book Bright and his staff have smoking gun evidence that a local district attorney is essentially conspired with jury commissioners to systematically under represent black people and women on juries, and they’re working really hard to get in this case because it’s now been years later, try to get Amma Dale a new trial and the district judge does the right thing, gives ’em a hearing, makes findings, and then that’s appealed and twice the 11th circuit on appeal pretty summarily reverses. There are other examples where either without full briefing or without clear explanation, you have summary disposition of things. And so if that’s happening more and more in SCOTUS, then I certainly would be bothered by that.

We know that in the past they’ve done that in some really high profile cases when they’ve essentially had enough. One thing I do get into in the book is that some of the, I guess the upset or bother among the justices and having to handle death penalty assert petitions over the years causes at least some of the conservative justices to push for kist reform. That is to say, to make it harder to file petitions, get relief and so forth, and that process, the justices in particular, chief Justice Rehnquist creates a commission to look into this and appoints Louis Powell to kind of spearhead it. I think this is a fallout as well in addition to the disposition of individual cases, perhaps on two summary basis, a kind of plea for help from Congress to basically stop.

Jackie Gardina:

It’s really challenging for people to understand and even those within the legal field because it’s true for me that courts can have evidence of actual innocence or the potential for proof of actual innocence and say, Nope, time’s up. We’re just going to put you to death. I had a colleague who was a death penalty opponent and he, in his syllabus, he actually had the site to the case and the quote from the case where a lawyer missed a deadline, a filing deadline, and as a result his client was put to death. And it was of course to have the students understand the importance of filing deadlines, but to have the consequence be that the state puts you to death is incredibly jarring and we’ve got a case in Missouri right now, and this is a state level, not federal level where the prosecuting attorney is actually saying he should be let go and the ags office is fighting it even though there’s evidence of actual innocence. I don’t know whether you have a way to explain to people why we have chosen a route that allows for potentially innocent individuals to be put to death by the state.

Robert Tsai:

The values of finality, that is to say that once a case is considered concluded by the system, that sense of finality is so powerful. This is a difference between what we might say, judicial indifference to suffering or what most of us would consider a travesty of justice, like a popular understanding what fairness would really entail. This is one reason why that argument has continued to be very powerful in getting people to take a second look at the advisability of the death penalty is the fact that so many people are being exonerated. I think the other thing you mentioned, the attorney, attorney general’s office and a prosecutor’s responsibility to do justice and not just to fight tooth and nail to protect an outcome. What kind of public officials do we want in that office? Attorney generals or people who are put in the position of having to represent the state to protect death sentences, for example, who have fought tooth and nail to defend, for example, death sentences, even though there’s clear evidence of racial discrimination by district attorneys below, or as you suggested evidence of actual innocence, even when you have DNA for example, they come up with another story that was never introduced in the original trial for how someone else’s DNA must have shown up on the evidence, but the defendant’s DNA is nowhere to be found.

How do we value fairness? When you do have a high profile case like that or enough of those kinds of things that add up, they do give voters a chance to think about that question. Have a piece coming out in the fall. I wish it’d come out earlier. What the piece does is it delves into one of Steve Bright’s crusades, which was to try to prevent one of these attorney general’s Assistant Attorney General at the time, who ran Alabama’s death penalty unit for many, many years and allowed intellectually disabled people to be executed, allowed people to be executed even though it was clear that district attorneys had bumped off all the black people from the juries. Bright’s argument was this is Attorney General who would make a terrible federal judge because they don’t have a demonstrated commitment to equal justice. Basically Bright goes to Congress and he works with some other people in some advocacy groups to try to tank this individual’s nomination to the 11th circuit.

Jackie Gardina:

You describe Bright as a cause lawyer and someone who believes in legal liberalism, and I’m going to define legal liberalism, but please correct me if I don’t say enough or I get it wrong, but legal liberalism is a theory that emphasizes the importance of individual liberty and the rule of law in our society and bright fought for the basic human dignity and for the constitutional rights of marginalized groups like those facing the death penalty. I’m curious whether you would consider attorneys seeking to repeal laws regarding reproductive healthcare or asserting that non-discrimination laws are unconstitutional because they discriminate based on religion or the First Amendment are also cause attorneys in the same way that you described bright.

Robert Tsai:

Great question. Let me answer your second question first. Yes, those are all the examples of cause lawyering, social justice, advocacy, anything with a sort of legal rights based and often constitutional component to the advocacy could be described as cause lawyering, legal liberalism is kind of a almost more capacious term, right? So it’s just kind of a way of thinking about an important part of our political legal tradition in this country, but that goes back further and is more capacious. It is a focus on rights. It’s about limits on government, but not just about individual rights. I describe Bright in the book as both the cause life for the reasons we just discussed, but also as kind of a devotee of a modern form of legal liberalism, which I’m actually in other my writings a little bit of a critic of at times and what I’m a critic of is the modern form of legal liberalism, at least in this country, has become very court focused.

So the criticism goes something like this, courts can do certain things and judges can be expected to do certain things, but they’re also not good at everything and they also don’t have the last word on everything. And so I think we start to run into problems when we start to think that judges can solve all of our problems. And so there are advocates cause lawyers who are primarily focused on bringing cases to court, but they also often find themselves bringing case after case after case wondering why it is that we’re still fighting over the 10 commandments on the wall. I don’t bring all of that into the book. I think that what Bright’s career represents is that on criminal justice issues, there’s quite a lot of things that can be done. You can really spotlight certain things that people haven’t noticed. By bringing cases you can uncover lots of things that have been hidden, hidden discrimination, hidden patterns. The fact that judges in some of these small counties run their courtrooms like fiefdoms, they don’t let black people serve on juries. You can uncover a lot of stuff through litigation. Can you fix that? Probably not. That’s going to require something more than court centered legal liberalism.

Jackie Gardina:

We are going to take another break and when we return, we’ll continue our discussion with our guest Robert Tsai, author of Demand, the Impossible.

Advertisement:

At Monterey College of Law, our students aim to positively impact their communities after graduation. Having been a law student, I’m really loving getting it to come back and be a teacher at the law school because I really look forward to helping law school students as they navigate this very unique and vulnerable time in their life and how I can help better prepare students as they deal with the rest of their law school experience, theBar exam, and then their eventual career. Visit monterey law.edu.

Mitch Winick:

Let me take that a step further because you’re talking about your movement lawyers. You and Mary Ziegler published an article about the rise of what you CallRail movement jurist, so we move it from the role of the lawyer to the role of the court and you define a movement jurist as someone who’s socially embedded in movement, aligned networks outside of the formal legal system and a court that’s willing to use a judge’s tool of the trade and the service of that movement’s goals. You note that both liberal and conservative judges have done this. We’ve seen recently even the Supreme Court and that they can appear to be movement juris, but you say they’ve always existed. Is that really something we just see more today because it’s today or has that always been part of the court system and the judicial system?

Robert Tsai:

I think that the risk has always been there. We could probably think of judges including the occasional justice that have at times appeared to have aligned themselves with some social movement of the day. We wrote that piece in part because the sense that judges should stand apart a little more as a way of showing their impartiality that ideal has until recently remain pretty strong as a central component of judging. I think John Roberts did not go to the annual federal society meeting in Washington DC, but four of his colleagues did after the Dobbs decision came down. This is something we point out so he better represents of what impartiality should look like and if it is indeed the case that we’re more likely to see movement aligned judges. We point to Judge Kame every conservative cause lawyer loves to try to get a case in front of Kame. I think that we are going to see shifts that are bigger than what we might like to see in our jurisprudence, and those shifts may be more like Dobbs because cause lawyers are committed to a kind of change through the legal system and if you can get some judge to basically sign on to your program, you’re going to see bigger changes than we usually do.

Mitch Winick:

One of our most recent guests, Larry Goldstone, who’s a historian constitutional historian, made the point that we try to hold the Supreme Court up as this independent nonpolitical body and he says, if you just really look at history, it’s always been a political body. It’s just that we don’t think of it being political when we like the decisions, but we do find it political when we don’t like the decisions. I thought that was a great way to make us think about it a little harder.

Robert Tsai:

I would never say that the Supreme Court as an institution has ever been apolitical. The way that justices are selected in this country differs greatly from a much more professional system. For example in Taiwan that you want to be a judge as a career, you have to make that choice pretty early on in life and you got to go through judges training school and you’ve got to take exams. That’s a very different way of creating a battalion of judges and inculcating a sense of what they’re up to than what we do, which is to funnel these decisions that are also connected to life tenure through the major political parties, the party in power, and there’s a lot of reasons why people who are ambitious will try to seek political patrons if they would like to be a judge. This is kind of the way things work in this country, and so I think we face a different risk of partisan judging, so what do we do about that? I do think that those are serious questions. I think eventually what it might take is downsizing the power of the federal judiciary and I think more Americans are open to that because they finally see what the world looks like when judges are making policy essentially.

Jackie Gardina:

I wanted to ask you about the arc in your book I found interesting, which is you described Steven Bright as once interested in politics, but then he came to believe that the courts were a better avenue to promote human dignity and to dress systemic issues, especially in the criminal justice system. At the end of the book, you appear to embrace the opposite approach. You think pushing for change through the legislature specifically at the state level is a more productive way to tackle criminal justice reform, and I was struck by the shift, and I understand it intuitively, but the politics of crime haven’t changed. It seems crime continues to be a talking point in elections. Crime statistics are touted back. The blue is a constant reframe. The Supreme Court has opened the door to criminalizing homelessness, so we’ve moved from a war on drugs to a war on the unhoused. In your eyes, what is different about this political and legal moment than the one that Bright was faced with?

Robert Tsai:

You’re right, broadly speaking that there features of the national rhetoric, the way that politicians feel like they have to talk about crime that come, I would say largely out of the sixties, really get powerful in the eighties and nineties where this book is centered. That way of talking lingers. I mean you can hear it in even Kamala Harris’s campaign. For her it’s more defensive. You look at her career, she was not the same kind of tough on crime prosecutor apparently, as some of the people in my book in the deep south. My guess would’ve been that if she had been confronted with some of these cases that attorney generals were confronted with in Georgia, Alabama, she might’ve taken a different kind of approach than just defend those tooth and nail. That’s one reaction to what you say. I do think that there’s much more than room for possible policy change, maybe not necessarily at the national level.

I do think that our national politics is still structured by the two major parties and is deeply problematic. We may not see a raft of new federal criminal laws, which is good. We may not see a lot of effort to undo those either, which is not great. That’s going to take a lot more time. However, at the state level, you’re seeing a lot more action, right? You’re seeing states get rid of life in prison for young people or building back tools that allow people to go back and revisit sentences. So we’ve moved from I think the mentality of three strikes and you’re out, or even just one strike to thinking about how do we build back in these norms where we go back and we give people another look to see how they’re doing. Do they really need to be locked up still?

Mitch Winick:

Robert, all three of us are teachers and we look out into our classrooms each week at a room full of future lawyers. Most of them will never be arguing cases before the Supreme Court. So what would you say to them about the lessons that could be learned from the career of Steven Bright and how should it shape their thoughts about the role they can and perhaps should play as future lawyers?

Robert Tsai:

One lesson that can be drawn from Steve Bright’s career is the value of persistence and the value of creativity. Those two attributes to never give up to try new ways of bringing issues into your case before. The courts are, I think, valuable. We run a great risk in having our students just see the formal features of the law, the formal structure of a legal memo or brief, and think that those are sufficient to do justice. I think what Bright’s career reminds us is how do you stick with a case and a client when you’re getting kicked out of court at multiple levels of the judicial system and instead of giving up, you try to find another way. You see this throughout his career and throughout his cases that he never gives up on a client. Not cutting and running when things get tough and you get an adverse judgment is an important thing to sort of cultivate the creativity thing. He has this pretty natural ability to put on a good face to believe that was important, to retain hope, share that with your client, find a way to carry on, and I think that the imagination is connected to the perseverance in that way. If you think that there’s still some rock that you can overturn, there’s some technique that you haven’t tried, some piece of evidence out there that you just haven’t found yet that can really help you get through the day. Those are the two things I would stress the most.

Jackie Gardina:

Robert, I want to thank you for writing the book because it was a joy to read at a time when the legal profession, I think is at an inflection point in terms of its ethical obligations to society as a whole, and reminding me of all the great work that lawyers have done and are doing was just helpful. The other thing that stands out to me about Steve Bright is his focus on human dignity. The idea that every individual is worth spending the time and the energy and the effort to help them. I would think even when he was unsuccessful, the fact that an attorney put in time, day after day after day, year after year, attempting to help them with their case was meaningful to those individuals beyond a win or loss in a court. That’s something that lawyers can give and it’s so important for our students to know that. So thank you so much for writing the book and for joining us today on SideBar.

Mitch Winick:

Thanks for having me. It was a pleasure. Robert. Thank you. Again, thank you for the book and thank you for bringing Steven Bright back into our lives, ed, for those of us that didn’t know him, bringing him to our lives, so thanks for that, Jackie. That was a great discussion about more than anything, a reminder of the power of being the kind of lawyer that picks up a cause and stays with it, not just for one case, not just for one job, but for a career. And I found the whole story of Steven Bright, both inspiring as a lawyer, but on behalf of society that these are issues that we want our system of justice to grapple with. They’re hard, they’re difficult, they’re not perfect, but Steven Bright, stuck with it. I hope that’s a message to all of us, just like Roberts said.

Jackie Gardina:

It’s interesting, Mitch, we’ve had the opportunity to talk to a couple of people. John Hawk comes to mind in terms of his 50 year commitment to Indian rights. Joel Rogers comes to mind in terms of his career long effort to bring model legislation to the state and local level, and now we’ve got Steven Bright who has spent 40 years in the trenches of criminal justice at a time when it was probably demoralizing. Robert’s idea of it is persistence and hope that drives people forward, and I’m just so thankful that we have both a profession that exists that allows these changes to be made and people who use the profession to move this country forward. Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebar’s. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.