North Carolina Open Government Coalition's Sunshine Day
Keynote Address by Judge Chris Brook

 

 

Thank you so much for that warm introduction, Brooks.  Thanks also to the North Carolina Open Government Coalition for doing me the great honor of having me on today’s program.  I greatly appreciate the opportunity as well as the work that you do in our state.  And a special thanks to someone who is not here today, Kym Hunter, an Open Government Coalition Board member who helped me think through these comments.

Before I get into the meat of my comments, let me provide you with a little further context about why I am so pleased to get the chance to speak with you today.  Both of my parents, Steve Brook and Sharon Glenn, were journalists at some point in their careers.  In fact, their first job after graduating from Furman University in Greenville, South Carolina was owning and publishing a local newspaper, the West Georgia News in Carrollton, Georgia.  Mom became a school teacher after they sold the newspaper a few years later, but Dad spent over 40 years working as a journalist before retiring last year as managing editor of The State newspaper in Columbia, South Carolina.  His retirement related to long-term downsizing in the newspaper industry, which, as I don’t need to tell anyone in this room, has particularly impacted regional and local papers.  So, suffice it to say, I grew up talking a lot about the importance of local and regional newspapers to the citizenry and our democracy and have some sense of what we lose when there are cuts at such institutions – and the related import of journalists’ ability to access government records and keep an eye on the people’s business.

And my work as an attorney has also deepened my interest in this area.  In my seven years as Legal Director of the American Civil Liberties Union of North Carolina, I drove across the state collecting public record responses from governmental agencies.  We successfully sued a state legislator who refused to provide a constituent with public records related to her advocacy to overturn a local plastic bag ban.  And I participated in a lot of dialogue inside and outside of the courtroom on public access to body camera footage.  Working for the ACLU, it was a blessing to have the North Carolina Open Government Coalition as a supportive resource and convener for essential conversations.  In fact, I was on a Sunshine Day panel sponsored by your group a few years back where Hugh Stevens argued for more robust public access to body camera footage than did I, the Legal Director of the ACLU of North Carolina.  There are better feelings than sensing Hugh sizing up your position so that he can dismantle it.  But, in all seriousness, while I have nothing like the experience of Hugh and Jon Buchan and other legends in this room, this is a space where I have not only personal but also professional interest.

Now, of course, I have a very different job.  As Brooks mentioned earlier, Governor Cooper appointed me to our state Court of Appeals in April 2019.  Instead of advocating for clients, I now seek to identify the answer the law provides when applied to the facts at hand.  Instead of advocating for government transparency consistent with personal liberty, I work through how our jurisprudence speaks to transparency issues in cases where such matters are presented to our Court.

So, with the mighty wisdom of ten and a half months on the bench, I would like to share some general thoughts on the judiciary and transparency, using last term’s United States Supreme Court decision in the census litigation as something of a case study in how courts seek out and weigh the facts underlying government action. My hope here is first to underline that, while having very different responsibilities, many of the challenges faced by journalists regarding incomplete or inconclusive information are also faced by litigants and the courts.  In addition, I hope to contribute to a conversation that has been increasingly debated these last few years and is of relevance to us all: how do we respond societally to combat disinformation through meaningful transparency?  Of course, how judges react to gaps in the record, ambiguities, or even matters more pernicious is necessarily different than the reaction of litigants and journalists. But, at the same time, this seems a wise moment for reflection. How new are these challenges?  And, to the extent these challenges are new and make the facts more elusive, frequently contested and easily concealed, how do we respond?

 

Starting broadly, one of the central tensions in judging is between the desire to perfectly understand what happened in the case before you and the reality that, for reasons practical, metaphysical, and, relating to the structure of our government, that is impossible.  First, practically speaking, judges should not delude themselves into believing that they are experts on every topic before them.  Even at courts with more modest caseloads than the North Carolina Court of Appeals, the breadth of issues that come before judges is hard to overstate.  Second, perfect understanding is an elusive thing.  There is ambiguity inherent in nearly every fact pattern.  Human beings sort out that ambiguity in different ways.  And that is before we even try to grapple with notoriously slippery issues like intent, which is a pertinent factor in everything from the criminal cases that dominate the caseload of my court and the census case that is the focal point of my comments this afternoon.  Finally, related to the first two points, the judiciary should be cautious about second guessing the other branches of government.

With this background, we come to a central question: how do we in the judiciary balance the need to avoid unnecessarily impeding the work of coordinate branches of government with the reality that good decision making, judicial or otherwise, is generally informed decisionmaking?  How do we ensure the law is followed and rights are respected with humility?  How do we not overstep while also not being credulous?

Of course, there are no easy answers to these questions.  But I do think the census litigation wonderfully illustrates these dueling considerations.

First, a caveat: I am not going to talk about the merits of the Supreme Court’s decision in this litigation.  I will focus instead on the process that led to the decision, with an eye to the reality that judges are generally operating from incomplete facts.

Second, let me provide a reminder of some of the factual context here.  The census has asked citizenship questions of some subgroups of our population episodically.  For example, the census from 1890 to 1910 asked foreign-born men 21 and older whether they were citizens.  From 1930 to 1950 the census asked foreign-born people more broadly whether they were citizens.  On the other hand, the census of 1840, 1850, 1860, and 1880 had no citizenship question.  In addition, the role the citizenship questions played in our census process has diminished over time, with only approximately 2.1% of the population being asked about their citizenship in 2010. And this was done, not through the census itself, but instead the related American Community Survey process.

In March 2018, however, President Donald Trump’s Commerce Secretary Wilbur Ross announced that there would be a citizenship question on the 2020 census.  As Chief Justice Roberts ultimately noted in his majority opinion in the ensuring litigation, “The Secretary stated that he was acting at the request of the Department of Justice, which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act – specifically the Act’s ban on diluting the influence of minority voters.”

Opponents of the question rejected this rationale.  Broadly, they argued the citizenship question was aimed at depressing immigrant response rates, lowering the population count, and, therefore, resulting in fewer Congressional districts in traditionally Democratic areas.  More narrowly, opponents claimed the stated basis for re-instituting the question was pretextual and contrived by Secretary Ross.

 

Litigation challenging the citizenship question hurtled forward given that the census was right around the corner from Secretary Ross’s March 2018 announcement.  The case quickly arrived at the Supreme Court, where it was orally argued on April 23, 2019.  The conventional wisdom from the oral argument was that there was a five-justice majority to uphold the question’s inclusion.  While the case remained pending before the Supreme Court, however, legal filings in the same case continued.  Namely, those challenging the citizenship question filed documents discovered by the daughter of Republican redistricting expert, Thomas Hoeffler, after his death.  These documents, authored by Hoeffler, suggested adding a citizenship question to the census would result in an undercount of the Latino population.  Those challenging the question argued that this was a smoking gun establishing the alleged pretext.

Got all of that?

The Supreme Court’s decision came down on June 27, 2019.  And, to the surprise of many, the Supreme Court held that the Trump administration’s basis for asking the question was indeed pretextual and that the district court was right to reject the Commerce Department’s rationale.  After some back and forth subsequent to the decision, the Trump administration abandoned its efforts to include a citizenship question in the 2020 census.

There were a number of different issues before the Supreme Court in this litigation, which produced a series of different alignments, with Chief Justice Roberts’s opinion controlling the outcome.  On the key question of pretext, the decision was five to four, with the Chief Justice writing for Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Clarence Thomas wrote the principal dissent, which was joined by Justices Gorsuch and Kavanaugh.  The back and forth between Chief Justice Roberts and Justice Thomas is a fascinating discourse on how demanding and skeptical judges should be of the coordinate branches.

Starting with the Chief Justice’s opinion, he notes three ways in which the judiciary should not be overly demanding or skeptical about executive agency decisionmaking.

First, “in reviewing agency action, a court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record.  That principle reflects the recognition that further judicial inquiry into executive motivation represents a substantial intrusion into the working of another branch and should normally be avoided.”

Second, “a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons.”  Put another way, the fact that political considerations also played a role in agency action is not dispositive.

Third, only in exceptional circumstances in which there has been “a strong showing of bad faith or improper behavior[,]” is it appropriate for courts to inquire into “the mental processes of administrative decisionmakers.”

 

These deferential considerations, however, were ultimately overcome in this case.  Explaining why the Court would consider and act upon evidence beyond the typically relied upon agency rationale for its actions, Chief Justice Roberts stated, “Accepting contrived reasons would defeat the purpose of the enterprise.  If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”  Concluding that “[w]hat was provided here [by the Commerce Department] was more of a distraction” from, than an explanation of, its actions, the Court majority struck this effort to ask a citizenship question.

The point is plain even as its thrust here and more broadly is controversial: Chief Justice Roberts does not want his Court’s review to devolve into something essentially meaningless.  And it does not take much sleuthing to believe that this is a matter of some real concern to him.  To this point: in the course of this discussion he wrote, “we are not required to exhibit a naivete from which ordinary citizens are free.”  A great line to be sure and one from the Second Circuit Court of Appeals’s 1977 opinion U.S. v. Stanchich, authored by Judge Henry Friendly.  Not only is Judge Friendly commonly regarded as one of the foremost appellate jurists of the 20th century but also Chief Justice Roberts clerked for him from 1979-1980.  It seems unlikely to me that this quote just stumbled into the Chief Justice’s opinion.

Suffice it to say, Justice Thomas disagrees with the Chief Justice’s opinion as to pretext, both as to the substantive conclusion and the process employed to arrive at it.  His main process critique is that, for all of the invoking of the abiding principles of deference and not intruding on agency and political prerogatives and not seeking to psychoanalyze decisionmakers, those considerations are left by the side of the road when the rubber meets that road.  Justice Thomas argues that, while “courts reviewing agency action owe the Executive a presumption of regularity, the Court pays only lipservice to this principle.”  A principle that, per Justice Thomas, “reflects respect for a coordinate branch of government whose officers do not only take an oath to support the Constitution, as we do, but also are charged with faithfully executing our laws.”

Justice Thomas also expresses grave concerns about the Chief Justice’s opinion either ushering in a sea change or instead representing something like acquiescence to political pressure.  If taken to its logical end, Justice Thomas suggests its impact will be profound.  “It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus.”  On the other hand, again using his words, if this opinion is merely an “echo[] [of] the din of suspicion and distrust that seems to typify modern discourse,” then the Chief Justice’s opinion will “come[] to be understood as a departure from traditional principles of administrative law – a ticket good for this day and this train only.”  Put another way, “today’s decision is either an aberration or a license for widespread inquiry into the motivations of Executive Branch officials.”

So where does that leave us with judicial decisionmaking and transparency?  It is plain that we are not rummaging through figurative bureaucratic drawers in search of truth or pretext or however it makes the most sense to label the inquiry at hand.  At the same time, again, we are “not required to exhibit a naivete from which ordinary citizens are free.”  Here, that balance was struck against the agency and in favor of, in Chief Justice Roberts’s words, “something better than the explanation offered.”  One need not look far for an arguably different balancing of similar equities in the Supreme Court’s deference to the executive’s explanation of the Travel Ban, with the Chief Justice again the fulcrum of a sharply divided court.

I will close by making a series of interrelated observations.  First, we have a dueling set of traditions in our country.  One tradition is exemplified by organizations like yours, who have made huge inroads in ensuring governmental transparency over the years.  Another tradition is of governmental opacity, for reasons good, bad, and indifferent.  Those of you in this room play a huge role in how we strike this balance, ever more consequential in a world threatened by disinformation with fewer local reporters on the beat and more technological alternatives for circumventing transparency.  I would also suggest that the question of how courts strike the balance between demanding and deferential will be asked with great frequency in this world.

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