The following guest post is by a Twitter friend of the Least Dangerous Blog from across the pond, Charlie Eastaugh. Charlie is currently a Visiting Fellow at the University of Surrey (outside of London). Charlie graduated with a Ph.D. in U.S. Constitutional Law from the University of Surrey in 2016.
The post contains some excerpts from Charlie's forthcoming book, Unconstitutional Solitude: Solitary Confinement and the US Constitution’s Evolving Standards of Decency (coming November 2017, published by Palgrave Macmillan, Springer Nature and available for pre-order). The monograph is a constitutional law / criminology hybrid on the Eighth Amendment and Solitary Confinement. His second book, a U.S. Constitutional Law treatise, is under contract with Routledge (Taylor & Francis).
Charlie is a member of the U.K. Study of Parliament Group and a Fellow of the Royal Society of Arts. He guest-lectured this semester at the Universities of Surrey and George Mason, Virginia. He can be emailed at c(dot)eastaugh(at)surrey.ac.uk.
We have preserved the English spellings and style because…it's more fun that way. Enjoy!
Professional Consensus as a Source of Constitutional Interpretation
By: Charlie Eastaugh
One element of interpreting the US Constitution’s punishments clause (found in the Eighth Amendment) which—until recently—largely escaped the US Supreme Court’s attention is epistemic consensus. Epistemic communities are those which pool knowledge by bringing together scientists and other experts, working with rigorous peer-review processes, shared normative and principled beliefs, and common notions of validity and best practice. Such communities are dynamic; ‘they differentiate, shift and transform’.[i] Haas sees the product of consensus from these groups not as raw, proven data, but ‘the centrality of agreed knowledge’.[ii]The “agreed knowledge” accepted by epistemic communities has been referred to in recent punishments jurisprudence as ‘professional consensus’.[iii] When the Court re-ignited the death penalty in 1976 and stipulated the rather abstractly termed ‘objective indicia that reflect the public attitude toward a given sanction’[iv] in Gregg v. Georgia, it made no mention of such collective expertise. This position has shifted, however, and incorporation of epistemic knowledge into general constitutional interpretation has undergone something of a revolution since the days of Gregg: it is becoming the rule rather than the exception.
Amici Curiae and the Supreme Court: History
Interest groups are a mainstay in American politics. Their definition extends to virtually any non-governmental organisation seeking to effect changes in public policy, including professional bodies and—by extension—epistemic communities. Such groups have made significant contributions in the judicial field, to the electoral process (revolutionised following the Federal Election Campaign Act of 1971), and to health politics (Roe and beyond).
The predominant form of their participation in the judicial sphere is as amicus curiae, “friends of the Court” who are invited to provide expert knowledge or interested insights to a case. This post will draw on a recent shift towards a greater inclusion of these briefs, both in the Court’s decision-making process and within its judgments. A much deeper discussion of the usefulness, propriety, and indeed desirability of such an inclusion is reserved for readers of my book.
Green v. Biddle saw the first acceptance of amici by SCOTUS.[v] Representing Kentucky in a land dispute with Virginia, statesman Henry Clay undertook the traditional role of amicus curiae and combined it with the role of an advocate. Lowman has remarked that ‘Green perhaps presented the most opportune time for the amicus curiae to emerge in the federal courts’,[vi] after the justices derived significant benefit from Clay’s intervention in that case, drawing on his expertise in defining complex land patents which had clashed for decades.
In the centuries following Green, amicus filings proliferated significantly, with Kearney and Merrill remarking that the 10% minority of Supreme Court cases in receipt of such advisory briefs in the early-20th Century burgeoned to over 85% by the 21st Century.[vii] Notably, amicus briefs contributed a significant impact to the Civil Rights Movement in the mid-20th Century.[viii]Brown v. Board of Education provides a stark example,[ix] where Chief Justice Warren’s ‘footnote eleven’[x] included a dossier of psychological scientific authority, supporting the Court’s opinion that the “separate but equal” doctrine was repugnant to the Constitution and to prevailing professional consensus.
Amicus briefs, according to Supreme Court Rule 37—which governs their inclusion—may be of considerable help to the Court, due to the expertise of the authors, and to anchor the justices’ opinions with a sense of their real-world impact. Analysis of recent usage statistics reveals the true extent of their assistance. The 2012-13 term saw an unprecedented 1,003 amicus briefs submitted for consideration in the 73 cases decided by the Court.[xi]Significant cases Hollingsworth v. Perry (Proposition 8, same-sex marriage)[xii] and Fisher v. University of Texas (affirmative action in university admissions)[xiii] garnered many more, with 96 and 92 briefs submitted respectively.[xiv] Overall, the term saw a record 96% of cases receiving at least one amicus brief, with justices citing them in 53% of their judgments. By contrast, Brown v. Board of Education—considered a high watermark for amicus briefs at the time—received six. The following term saw amici figures back in the triple digits, with 147 in the marriage-equality case (Obergefell v. Hodges).[xv]
The most recent term for which finalised records are available is 2015-16, a difficult year for the justices with Antonin Scalia leaving a titanic gap on the bench. The Court received 863 briefs,[xvi] the second highest on record and another significant dossier continuing a 12-per-case average trend prevailing over the past half-decade. The likelihood of citations when the Court is split 5-4 also rose significantly, with around 80% of split holdings citing briefs, as opposed to 50% where the justices were unanimous. From this consideration of figures it becomes clear that the submission and citation of amicus briefs is now the rule rather than the exception.
The Eighth Amendment
Narrowing the discussion to punishments precedent, the Supreme Court has a chequered record with respect to amicus citation. As noted in the introduction, the Gregg majority provided no view of professional consensus, merely stipulating that the evolutive decency assessment (by which the justices breathe meaning into the punishment clause’s protections) must be “objective”. More recent cases show that the Court’s position has evolved to consider extra-legal, epistemic knowledge.
The majority judgments in Thompson and Stanford both made notable references to professional consensus in assessing the Eighth Amendment’s evolution with respect to the age of executable offenders. Restricting capital punishment to offenders aged over 16 due to ‘civilized standards of decency’, the Thompson majority felt that its decision was ‘consistent with the views that have been expressed by respected professional organizations’.[xvii]Such views were seen as irrelevant in Stanford,[xviii] however where the Court reasoned that the Constitution did should not protect 16 and 17 year-olds from execution, and rejected the relevance of interest groups and professional associations. Justice Brennan dissented from the Court’s rejection of professional consensus, noting that expert organisations have greater proficiency than the Court ever could and that ‘there is no reason why that judgment should not be entitled to attention as an indicator of contemporary standards.’[xix]Roper reversed the Court’s position and brought it in line with Brennan’s Stanford dissent, with the majority in Roper placing as much reliance on professional consensus as it did on international standards and state head-counting.[xx]Although the term “professional consensus” would not feature in the Court’s judgments until later, Roper represented a shift towards respect for epistemic knowledge in informing evolutive decency assessments. The majority noted that ‘youth is more than a chronological fact’[xxi] and that expert psychologists have difficulty differentiating ‘between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’[xxii]Similar reliance on accumulated professional knowledge can be found in the majority judgment in Atkins. Whereas most respect was paid to other measures of consensus, the Court in Atkins noted that the views of ‘several organizations with germane expertise’ were complementary to other objective indicia, ‘reflect[ing] a much broader social and professional consensus.’[xxiii] These organisations, including the American Psychological Association (APA) and the American Association on Mental Retardation (AAMR) participated in Atkins, providing a comprehensive demonstration of consensus which was eventually adopted by the majority.
The most contentious appeals citing Atkins in support invariably arise from those appeals brought by offenders with IQ scores in the low 70s or high 60s, the tide-mark deposited by Justice Stevens. Hall v. Florida,[xxiv] which raised a procedural question surrounding intellectual disability assessments, provided a vehicle for further evolutive interpretation in 2014. Importantly, the Court referred explicitly to professional consensus, adopting this indicator of evolutive decency for the first time.
Through lengthy recitals to detailed amici, again provided by the APA and AAIDD, a 5-4 Hall majority identified an evolving standard of decency in the Eighth Amendment. Florida’s bright-line rule neglected consideration of the medical and behavioural history of offenders, which could determine that individuals with IQs above 70 on the standard scale were in fact intellectually disabled. The professional consensus identified by the justices to represent an evolving standard of decency in Hall was borne out of two principal amici curiae, each containing empirical, peer-reviewed literature from a variety of scientific journals.[xxv]In essence, the professional consensus surrounding IQ measurement is that scores should be read as a range, not bright-lines: ‘Intellectual disability is a condition, not a number.’[xxvi] This position was further clarified in 2017, when the Court decided the latest case in the Atkins-Hall saga: Moore v. Texas.[xxvii]
A Revolution of Constitutional Professionalisation?
The crux of the question before the Moore Court was whether a framework for intellectual disability assessments developed in 1992 and 2004 (which included, inter alia, a “Lennie standard”—by reference to Steinbeck’s intellectually disabled character in Of Mice and Men) satisfied the Court’s emphasis in Hall on behavioural characteristics as mandated by the medical profession.
Moore argued that the AAIDD and APA’s definitions have changed since 2004, and that the Texan scheme therefore cannot adequately cater for the constitutionally-required consideration of modern professional consensus. Such statements were, as could be expected, echoed throughout the amici briefs—nine in total. In sum, representatives for the petitioner argued that ‘[t]he evidence that Bobby James Moore is intellectually disabled is overwhelming’,[xxviii] and amici added that ‘Texas disregards the current diagnostic consensus of mental health professionals when evaluating Atkins claims’.[xxix]
It appeared quite likely at oral argument that Moore could receive five favourable votes on the merits (including Justice Kennedy as the swing) and would therefore be spared execution due to his status as constitutionally-protected under Atkins. That decision arrived in March 2017, with Justice Ginsburg writing for the (5-3) majority.
Ginsburg’s opinion noted the “clinical literature” and made thirteen references to the “medical community”—a significant nod to the role of professional consensus in Eighth Amendment adjudication. Justice Ginsburg’s 5-3 majority agreed, noting the “clinical literature” and making thirteen references to the “medical community”—a significant nod to the role of professional consensus in Eighth Amendment adjudication. The majority included significant citations to several amici (including the AAIDD and the APA) in making the conclusions that ‘adjudications of intellectual disability should be informed by the views of medical experts’, and that such an ‘instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus’.[xxx]
Ginsburg concluded for the Court that, while Atkins and Hall had ‘left to the States “the task of developing appropriate ways to enforce” the restriction’,[xxxi] such discretion is not unfettered, and must be informed by the medical community’s professional consensus.
Patently, the Court has made clear that the Atkins-Hall precedent, while stopping short of demanding total reliance on medical guidelines, commands respect for current medical professional consensus in Eighth Amendment adjudication. For intellectual disability at least, the matter has been settled. Whether this same majority continues its reliance on professional consensus in further punishments cases—explicitly or implicitly—could have far more wide-reaching implications for the future of punishments clause evolution. I have written a more substantial piece on this topic, forthcoming in Willamette Law Review and available for download on SSRN here.
An Interpretive Assessment and Concluding Notes
For as long as amici are emboldened by SCOTUS’s sustained citation practices, the views of professionals will continue to feature in the United States Reports. This element of evolutive interpretation provides an example of something the late Professor Ronald Dworkin described as a mere statistic of collectivity, rather than a rational use of moral communal will.
Interpreting the Eighth Amendment’s punishment clause under its evolutive principle seeks moral answers to legal questions, and the Court must make principled references to the community standards that show that provision in its best moral light. For professional consensus to provide value in judicial adjudication, that information must be treated as a collection of background principles interlaced with rules to inform law. This is where the post strays into waters perhaps better suited to a legal theory blog. Interested readers are directed to see Chapter 3 (interpretive theory) and Chapter 7 (professional consensus) of my book, which will be published in November 2017 and can be pre-ordered here. In the book I also examine objective indicia of evolving standards such as majoritarian state counting, (controversial) international opinion, and penological principles.
Excerpts of Charlie Eastaugh, Unconstitutional Solitude: Solitary Confinement and the US Constitution’s Evolving Standards of Decency, 2017, Palgrave Macmillan (Chapter Seven) are reproduced and abridged for this blog with permission of Palgrave Macmillan by virtue of the author’s contractual re-use rights.
[i] Morgan Meyer and Susan Molyneux-Hodgson, ‘Introduction: The Dynamics of Epistemic Communities’ (2010) 15(2) Sociological Research online <www.socresonline.org.uk/15/2/14.html> 25 May 2017. This concept was first introduced by Bukart Holzner, Reality Construction in Society (Schenkman 1968), but more recently revitalised by Peter Haas, ‘Introduction: epistemic communities and international policy co-ordination’ (1992) 46(1) International Organization 1, 3.
[ii] Claire Dunlop, ‘Epistemic Communities’ (2000) 20 Politics 137, 142, discussing Peter Haas, ‘Banning Chloroflurorcarbons’ (1992) 46 International Organization 187.
[iii]Hall v. Florida 134 S Ct 1986 (2014) 2000.
[iv]Gregg v. Georgia 428 US 153 (1976) 173.
[v] 21 US (8 Wheat) 1 (1823).
[vi] ‘Green was the largest land case of the time, culminating decades of confusion resulting from conflicting land patents’ from the two states. Michael Lowman, ‘The Litigating Amicus Curiae’ (1992) 41 American University Law Review 1243, 1255 fn70.
[vii] Joseph Kearney and Thomas Merrill, ‘The Influence of Amicus Curiae Briefs on the Supreme Court’ (2000) 148 University of Pennsylvania Law Review 743, 744.
[viii] Samuel Krislov, ‘The Amicus Curiae Brief’ (1963) 72 YLJ 694, 714-715.
[ix] 347 US 483 (1954).
[x] ibid 494 fn11. This footnote was followed by significant analysis. For an apt summary, see Michael Heise, ‘Brown v. Board of Education, Footnote 11, and Multidisciplinarity’ (2005) 90 Cornell Law Review 279.
[xi] Anthony J Franze and R Reeves Anderson (National Law Journal, September 2013), ‘The Supreme Court’s Reliance on Amicus Curiae in the 2012-13 Term’ <http://tinyurl.com/NLJ20122013> accessed 25 May 2017.
[xii] 133 S Ct 2652 (2013).
[xiii] 133 S Ct 2411 (2013).
[xv] 135 S. Ct. 2584 (2015).
[xvi] Anthony J Franze and R Reeves Anderson (National Law Journal, September 2016), ‘In Unusual Term, Big Year for Amicus Curiae at the Supreme Court’ <http://tinyurl.com/NLJ20152016> (accessed 25 May 2017).
[xvii]Thompson v. Oklahoma 487 US 815 (1988) 830; 835, showing that ‘less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult’ and 835 fn42, where citation was made to D Lewis, J Pincus, B Bard, E Richardson, L Prichep, M Feldman and C Yeager (sic), ‘Neuropsychiatric, Pyschoeducational, and Family Characteristics of 14 Juveniles Condemned to Death in the United States’ (1987) 145 American Journal of Psychiatry 584.
[xviii]Stanford v. Kentucky 492 US 361 (1989).
[xix] ibid 388; 384, Brennan, J (dissenting): ‘The views of organizations with expertise in relevant fields…also merit our attention as indicators whether a punishment is acceptable in a civilized society.’
[xx]Roper v. Simmons (2005) 543 US 551, 567 (citing the ICCPR); 568.
[xxi] ibid 569, referencing Laurence Steinberg and Elizabeth Scott, ‘Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty’ (2003) 58 American Psychologist 1009; Jeffrey Arnett, ‘Reckless Behavior in Adolescence’ (1992) 12 Developmental Review 339.
[xxii]Roper (n xx) 574, referencing Steinberg and Scott (ibid) 1014-1016; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edn, American Psychiatric Press 1994) 701-706.
[xxiii]Atkins v. Virginia 536 US 304 (2002) 316 fn21: ‘Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.’
[xxiv] 134 S Ct 1986 (2014).
[xxv] Brief for American Psychological Association et al, Hall v. Florida, No. 12–10882 (134 S Ct 1986 (2014)); Brief for American Association on Intellectual and Developmental Disabilities et al, Hall v. Florida, No. 12–10882 (134 S Ct 1986 (2014)).
[xxvi]Hall (n 4) 2001.
[xxvii] 581 US ___ (2017).
[xxviii] Brief for Petitioner, Moore v. Texas (2016) (No. 15-797) 22.
[xxix] Brief of American Psychiatric Association et al as Amici Curiae, Moore v. Texas (2016) (No. 15-797) 14.
[xxx]Moore (n xxvii) 2 (per Ginsburg, J).
[xxxi] ibid. 9 (per Ginsburg, J, quoting Atkins (n xxiii) 317).