Jed S. Rakoff

Benched: Abor­tion, Ter­ror­ists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Fed­eral Judge by Jon O. New­man

The New York Review of Books - - Contents - Jed S. Rakoff


Abor­tion, Ter­ror­ists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Fed­eral Judge by Jon O. New­man.

Wil­liam S. Hein,

306 pp., $29.95 (pa­per)

Judges come in many fla­vors. Thur­good Mar­shall could be salty, even spicy. In dis­sent, An­tonin Scalia could be sour and oc­ca­sion­ally bit­ter. Al­most no judge qual­i­fies as sweet. But in his autobiogra­phy, Benched, the distin­guished fed­eral ap­pel­late judge Jon O. New­man seems to em­body what sci­en­tists have de­scribed as the fifth ba­sic taste—umami, mean­ing sa­vory or, as ap­pro­pri­ate here, meaty.

New­man has served as a fed­eral judge for more than forty-six years, most of them on the Sec­ond Cir­cuit Court of Ap­peals (which han­dles fed­eral ap­pel­late cases aris­ing in New York, Con­necti­cut, and Ver­mont). Within the le­gal pro­fes­sion, he is well known and highly re­garded. When he re­ceived the fed­eral ju­di­ciary’s high­est honor, the De­vitt Award, in December 2016, Jus­tice So­nia So­tomayor de­scribed him as “a man of un­com­mon bril­liance, and gen­eros­ity.” His le­gal con­tri­bu­tions have di­rectly in­flu­enced the de­vel­op­ment of the law and thereby indi­rectly af­fected the lives of thou­sands of or­di­nary Amer­i­cans—most of whom have never heard of him.

Will the pub­li­ca­tion of his fine autobiogra­phy al­ter his com­par­a­tive anonymity? Prob­a­bly not. Al­though Benched is filled with in­ter­est­ing, of­ten delightful anec­dotes, it has (as its pun­ning ti­tle sug­gests) a cer­tain in­sider qual­ity that may limit its ac­ces­si­bil­ity. For ex­am­ple, New­man de­scribes the machi­na­tions that he had to go through in or­der to have a bust of for­mer fed­eral judge Henry Friendly—al­most uni­ver­sally re­garded as the most ac­com­plished fed­eral judge of the 1960s and 1970s—added to the court­room where the Sec­ond Cir­cuit sat. Al­though one might have thought this would be easy, New­man knew bet­ter, be­cause Irv­ing Kauf­man (in­fa­mous for sen­tenc­ing Julius and Ethel Rosenberg to death) “was still the chief judge, and I sus­pected that his van­ity and ego, large even by ju­di­cial stan­dards, would not make him re­cep­tive to my pro­posal.” (This is as close as New­man comes in the en­tire book to say­ing any­thing dis­parag­ing about a col­league, let alone about judges in gen­eral.) It was only by se­cretly en­list­ing other judges in his plot, choos­ing the right mo­ment, and then pre­sent­ing Kauf­man with an ef­fec­tive fait ac­com­pli that New­man achieved his goal.

For those of us who per­son­ally knew both Friendly and Kauf­man, this story is de­li­cious. But to most read­ers, it may well seem of lit­tle con­se­quence. Over the past decade or more, I have each year asked my stu­dents at Columbia Law School, “Who was Henry Friendly?” In re­sponse I usu­ally get blank stares or, oc­ca­sion­ally, “Isn’t that the guy Chief Jus­tice Roberts clerked for?” The ju­di­cial van­ity of which New­man rightly takes note is nicely matched, it would ap­pear, by the speed with which even great judges are for­got­ten.

Equally un­no­ticed, it seems, are the con­sid­er­able ef­forts un­der­taken by what the Con­sti­tu­tion calls the “in­fe­rior” courts (i.e., all the fed­eral courts ex­cept the Supreme Court) to de­velop and carry out the law of the land. How many peo­ple now re­mem­ber, for ex­am­ple, that af­ter the Supreme Court ex­pressly left open in Brown v. Board of Education the man­ner in which in­te­gra­tion was to be achieved, it was a group of heroic (and fre­quently threat­ened and re­viled) fed­eral judges— in­clud­ing John R. Brown of Texas, Frank M. John­son Jr. and Richard Rives of Alabama, El­bert P. Tut­tle of Georgia, and John Mi­nor Wis­dom and J. Skelly Wright of Louisiana—who made it a re­al­ity in the Deep South?* In this vein, Benched is im­por­tant, among other rea­sons, for re­mind­ing us of New­man’s con­tri­bu­tion to de­vis­ing the le­gal the­ory that ul­ti­mately led to Roe v. Wade. In 1972, only a few months af­ter be­com­ing a fed­eral judge, he cast the de­cid­ing vote in a 2–1 de­ci­sion hold­ing that an 1860 Con­necti­cut statute pro­hibit­ing abor­tions was an un­con­sti­tu­tional in­va­sion of a woman’s right to pri­vacy in the ab­sence of a com­pelling state in­ter­est in pre­vent­ing abor­tions. In re­sponse, the Con­necti­cut state leg­is­la­ture en­acted a new anti-abor­tion statute, the ex­press pur­pose of which was “to pro­tect and pre­serve hu­man life from the mo­ment of con­cep­tion.” On that ba­sis, the new statute pro­hib­ited all abor­tions ex­cept those nec­es­sary to “pre­serve the phys­i­cal life of the mother.”

The ques­tion of whether this new statute was con­sti­tu­tional then re­turned to the same three-judge court, which again held it un­con­sti­tu­tional by a 2–1 vote. Writ­ing for the ma­jor­ity, New­man put for­ward the some­what orig­i­nal le­gal the­ory that the state’s in­ter­est in pre­serv­ing the life of the fe­tus could not over­ride the mother’s con­sti­tu­tional right to con­trol her own body and de­cide whether to bear a child un­til the mo­ment of “vi­a­bil­ity,” when the fe­tus could sur­vive out­side the womb. It was this the­ory that the Supreme Court (in an opin­ion that twice cited New­man’s de­ci­sion) adopted a year later in Roe v. Wade.

In the four and a half decades since then, New­man has con­trib­uted sig­nif­i­cantly to the rea­soned evo­lu­tion of the law in ar­eas as di­verse as na­tional se­cu­rity, free speech, in­tel­lec­tual prop­erty, crim­i­nal law, ex­trater­ri­to­rial ju­ris­dic­tion, and fed­eral pro­ce­dure. While he dis­claims ad­her­ence to any “over­ar­ch­ing” ju­di­cial phi­los­o­phy, he notes that “I tend to be a strong pro­po­nent of the free­dom of ex­pres­sion guar­an­teed by the First Amend­ment and a strong op­po­nent of racially based gov­ern­men­tal ac­tions pro­hib­ited by the Equal Pro­tec­tion Clause of the Four­teenth Amend­ment.” But he then adds, “I am not sure why I have taken strong po­si­tions on ei­ther mat­ter.”

His un­cer­tainty in this re­spect sur­prises me. As he writes else­where in

the book, US fed­eral judges are given a de­gree of in­de­pen­dence nearly unique among the world’s ju­di­cia­ries, and a prime rea­son for pro­vid­ing such in­de­pen­dence, as any student of the Fed­er­al­ist Pa­pers knows, is to en­able them to pro­tect un­pop­u­lar causes and un­fairly treated mi­nori­ties against the tyranny of the ma­jor­ity. What should bother us, there­fore, is not that great judges like New­man un­der­take to ful­fill that obli­ga­tion, even if only in­stinc­tively, but that so many other judges fail to rec­og­nize their ap­pointed re­spon­si­bil­ity to make sure that equal jus­tice is pro­vided to the un­pop­u­lar and the op­pressed. An­other duty that many judges ig­nore but that New­man ex­pressly rec­og­nizes is their duty (as set forth, for ex­am­ple, in the Code of Con­duct for United States Judges) to con­trib­ute to the im­prove­ment of the ad­min­is­tra­tion of jus­tice by sug­gest­ing to other branches of the gov­ern­ment help­ful statutes, pro­ce­dures, and reg­u­la­tions, as well as by im­prov­ing pro­ce­dures within the ju­di­ciary it­self. As the cur­rent chief judge of the Sec­ond Cir­cuit, Robert A. Katz­mann, has stated: “If Jon New­man were a sports fig­ure, he would be the peren­nial win­ner of the most valu­able player award for his con­tri­bu­tions to the ad­min­is­tra­tion of jus­tice.” How­ever, as the say­ing goes, we should be care­ful what we wish for; and in at least one re­spect New­man ap­pears to have seller’s re­morse, specif­i­cally over his role in pro­mot­ing the Fed­eral Sen­tenc­ing Guide­lines. These take the form of an im­mensely com­pli­cated set of rules, now ex­tend­ing over more than six hun­dred pages, that fed­eral judges must use to cal­cu­late a pro­posed prison sen­tence for any de­fen­dant con­victed of a fed­eral crime (though once the cal­cu­la­tion is made, judges may vary from it). As New­man notes, the in­tel­lec­tual im­pe­tus for the guide­lines was a 1973 book called Crim­i­nal Sen­tences: Law With­out Or­der, by the late Marvin Frankel, a well-re­spected judge on my court and pre­vi­ously a law pro­fes­sor at Columbia Law School. Frankel was highly crit­i­cal of how his fel­low judges de­ter­mined prison sen­tences. He ar­gued that a lack of mean­ing­ful stan­dards led to ir­ra­tional sen­tenc­ing dis­par­i­ties, with some judges im­pos­ing sub­stan­tial prison terms for crimes that other judges treated le­niently. He pro­posed the cre­ation of a sen­tenc­ing com­mis­sion to de­vise spe­cific, though non­bind­ing, guide­lines for what prison terms should be im­posed in any kind of case. A fed­eral judge could then use these guide­lines as a help­ful start­ing point in de­ter­min­ing the ap­pro­pri­ate sen­tence.

It all sounded rea­son­able. Frankel, who prided him­self on be­ing ec­u­meni­cal, sug­gested that the sen­tenc­ing com­mis­sion con­sist not only of lawyers and judges but also of “so­ci­ol­o­gists, psy­chol­o­gists, busi­ness peo­ple, artists, and, lastly for em­pha­sis, for­mer or present prison in­mates.” While this may have been un­re­al­is­tic to the point of fan­tasy, the over­all pro­posal won the sup­port of many lib­er­als, no­tably Sen­a­tor Ted Kennedy and his then aide Stephen Breyer. It also won the sup­port of New­man, who was one of only a few fed­eral judges to tes­tify in fa­vor of the con­cept of sen­tenc­ing guide­lines as Kennedy’s bill au­tho­riz­ing them made its way through Congress and was fi­nally en­acted, tak­ing ef­fect in 1984. How­ever, as New­man writes,

when the [sen­tenc­ing] com­mis­sion’s first draft ap­peared in 1986, those of us who had fa­vored guide­lines were ap­palled. We had an­tic­i­pated a mod­est set of flex­i­ble guide­lines . . . . In­stead, the com­mis­sion, heav­ily in­flu­enced by three pro­fes­sors on the sev­en­mem­ber com­mis­sion, cre­ated an ex­traor­di­nar­ily de­tailed and com­pli­cated set of guide­lines .... The guide­lines did not just limit the dis­cre­tion of sen­tenc­ing judges, it con­stricted it to an ex­tent no one could have pre­dicted.

As a re­sult, New­man be­came a critic of the now rather mis­named Sen­tenc­ing Guide­lines, which were re­ally not guide­lines at all. He “wrote ar­ti­cles and tes­ti­fied at com­mis­sion hear­ings in fa­vor of guide­lines sim­pli­fi­ca­tion, all to no avail.”

Nev­er­the­less, the Sen­tenc­ing Guide­lines, ever pop­u­lar with Congress, and in­creas­ingly ac­cepted by new fed­eral judges who have never known any­thing else, ap­pear to be here to stay. New­man now re­al­izes his mis­take, and de­votes an en­tire chap­ter of Benched to what he terms the guide­lines’ “in­cre­men­tal im­moral­ity,” i.e., the ir­ra­tional way in which, un­der the guise of sim­ply mak­ing arith­metic cal­cu­la­tions, they pile on pun­ish­ments to ab­surd lengths.

It may be sug­gested, how­ever, that even New­man’s tren­chant crit­i­cisms do not take the full mea­sure of the prob­lems with the guide­lines. To be­gin with, they rest on a false premise: that all the many fac­tors that a fair and rea­son­able judge should take into ac­count in de­ter­min­ing a prison sen­tence can be re­duced to a nu­mer­i­cal cal­cu­la­tion by as­sign­ing quan­ti­ta­tive val­ues (them­selves de­ter­mined more or less ar­bi­trar­ily) to ev­ery com­bi­na­tion of fac­tors and cir­cum­stances that might arise in any given case.

More­over, the guide­lines, by thus fo­cus­ing on the as­sign­ment of num­bers, wind up ac­cord­ing much more im­por­tance to fac­tors that can be ob­jec­tively mea­sured—such as the weight of the drugs in­volved in a nar­cotics trans­ac­tion or the amount of fi­nan­cial loss oc­ca­sioned by a fraud—than to fac­tors that can­not eas­ily be mea­sured, such as what led the de­fen­dant to com­mit the crime and what part his own per­sonal, psy­cho­log­i­cal, so­cial, and fi­nan­cial cir­cum­stances played in his poor de­ci­sion. The re­sult is that, de­spite the guide­lines’ com­plex­ity, con­sid­er­ably more than half of the prison-time cal­cu­la­tion in nar­cotics cases (which com­prise 40 per­cent of the fed­eral crim­i­nal docket) is a func­tion of the weight of the drugs, around two thirds of the cal­cu­la­tion in fi­nan­cial crime cases (which com­prise an­other 35 per­cent of the fed­eral crim­i­nal docket) is a func­tion of the amount of money lost by the vic­tims, and so forth.

It is true that the guide­lines, which were for many years bind­ing on fed­eral judges, are now dis­cre­tionary (not be­cause of any leg­isla­tive change but as a re­sult of a 2005 Supreme Court de­ci­sion). In the­ory, judges may now take greater ac­count of less mea­sur­able fac­tors like a de­fen­dant’s back­ground, cir­cum­stances, and cul­pa­bil­ity. But this im­prove­ment has been more than off­set by two other de­vel­op­ments. First, Congress has re­peat­edly re­quired the Sen­tenc­ing Com­mis­sion to in­crease the sever­ity of guide­lines-rec­om­mended sen­tences, so that, for ex­am­ple, even many non­vi­o­lent crimes now re­sult in guide­lines cal­cu­la­tions of twenty, thirty, or forty years, or even life im­pris­on­ment. Sec­ond, judges are still re­quired to cal­cu­late the guide­lines sen­tence be­fore they even con­sider vary­ing from it, and this pre­dis­poses judges to im­pose much longer sen­tences than they might oth­er­wise choose. Thus, while nearly half of all sen­tences now im­posed are be­low the guide­lines (it­self a commentary on the guide­lines’ ac­cu­racy), many of these are rel­a­tively small vari­ances—for the ob­vi­ous rea­son that a judge who cal­cu­lates a guide­lines sen­tence of, say, thirty years may be re­luc­tant to im­pose a sen­tence of, say, five, ten, or even twenty years, feel­ing that so great a vari­ance would un­der­cut the guide­lines’ stated pur­pose of avoid­ing sub­stan­tial sen­tenc­ing dis­par­i­ties.

The truth, how­ever, is that the guide­lines do not even achieve their in­tended pur­pose of avoid­ing dis­par­i­ties. Be­cause so much of the guide­lines cal­cu­la­tion is a func­tion of mea­sur­able quan­ti­ties like the weight of the drugs or the amount of the eco­nomic loss, pros­e­cu­tors and de­fense lawyers rou­tinely en­ter into plea bar­gains that con­tain ne­go­ti­ated cal­cu­la­tions as to the amount of drugs a given de­fen­dant was re­spon­si­ble for dis­tribut­ing or how much eco­nomic loss was at­trib­ut­able to the acts of a par­tic­u­lar de­fen­dant, for ex­am­ple. These ne­go­ti­ated cal­cu­la­tions are en­demic, be­cause plea bar­gains re­solve over 97 per­cent of all fed­eral crim­i­nal cases that are not dis­missed at the out­set.

Yet the in­di­vid­ual fed­eral pros­e­cu­tors within a given of­fice vary sub­stan­tially in how tough or le­nient they are dur­ing these ne­go­ti­a­tions, and dif­fer­ent fed­eral pros­e­cu­tors’ of­fices vary among them­selves even more. Nor, with rare ex­cep­tions, are there any in­ter­nal guide­lines of any kind gov­ern­ing these ne­go­ti­a­tions, which are con­ducted in se­cret. As for the judge who ul­ti­mately im­poses a sen­tence, she is rarely if ever in a po­si­tion to ques­tion these crit­i­cal guide­lines cal­cu­la­tions to which the par­ties have agreed. The re­al­ity, there­fore, is that there are prob­a­bly greater ac­tual dis­par­i­ties in fed­eral sen­tences to­day than there were dur­ing the preguide­lines era.

For­tu­nately, most of the in­no­va­tions sup­ported by New­man have not back­fired the way the Sen­tenc­ing Guide­lines have. To his fur­ther credit, he is frank in ad­mit­ting past mis­takes while con­tin­u­ing to rec­om­mend im­prove­ments in the ad­min­is­tra­tion of jus­tice, rec­og­niz­ing that we still have a long way to go to achieve a sys­tem that is fair and just. In­deed, he de­votes the en­tire fi­nal sec­tion of Benched to propos­ing no fewer than twenty sub­stan­tive im­prove­ments to our sys­tem of jus­tice, rang­ing from lim­it­ing to five years the time any prison em­ployee is per­mit­ted to guard pris­on­ers (so as to re­duce the doc­u­mented ten­dency of prison guards to be­come “hard­ened” and even sadis­tic over time) to per­ma­nently in­sti­tu­tion­al­iz­ing the of­fice of spe­cial prose­cu­tor (so as to avoid the po­lit­i­cal and pub­lic pres­sures on ad hoc spe­cial pros­e­cu­tors). New­man’s most far-reach­ing pro­posal is to per­mit lit­er­ally any Amer­i­can to chal­lenge in fed­eral court any gov­ern­ment ac­tion that vi­o­lates the laws or Con­sti­tu­tion of the United States. As he states: “When­ever a gov­ern­ment of­fi­cial takes or threat­ens un­law­ful ac­tion, any per­son should be al­lowed to chal­lenge such ac­tion in court. Un­for­tu­nately that is not now pos­si­ble be­cause of the Supreme Court’s re­stric­tive ap­proach as to who has ‘stand­ing’ to file a law­suit.”

The con­cept of “stand­ing” to which New­man refers is largely a judge-made lim­i­ta­tion that even judges find some­what opaque. Ar­ti­cle III, sec­tion 2 of the Con­sti­tu­tion pro­vides that “the ju­di­cial power [of the fed­eral courts] shall ex­tend to all cases, in law and eq­uity, aris­ing un­der this Con­sti­tu­tion, the laws of the United States, and treaties made, or which shall be made, un­der their author­ity”; but it says noth­ing about who can sue a gov­ern­ment of­fi­cial for violations of the Con­sti­tu­tion or of those laws and treaties. How­ever, un­der the doc­trine of “stand­ing” as ap­plied to gov­ern­ment mis­con­duct, no one can bring suit in fed­eral court for a gov­ern­ment of­fi­cial’s al­legedly un­law­ful acts un­less the com­plainant has suf­fered, as a di­rect re­sult of the al­leged mis­con­duct, a con­crete in­jury that is per­sonal to that plain­tiff, some­times re­ferred to as an “in­jury in fact.” More­over, though the law of stand­ing is no­to­ri­ously in­con­sis­tent, at least some Supreme Court cases sug­gest that even if a would-be plain­tiff has suf­fered such a con­crete per­sonal harm, in the words of Warth v. Seldin (1975) he still is not en­ti­tled to sue “when the as­serted harm is a ‘gen­er­al­ized griev­ance’ shared in sub­stan­tially equal mea­sure by all or a large class of cit­i­zens.” New­man is par­tic­u­larly crit­i­cal of this last re­quire­ment, for it ar­guably places some­one seek­ing re­dress in the fed­eral courts for some un­law­ful gov­ern­ment ac­tion in a Catch-22. If the un­law­ful ac­tion is so mod­est or nar­row as not to have caused the com­plainant any di­rect, con­crete per­sonal harm, he can­not sue. But if the un­law­ful ac­tion is so sub­stan­tial or broad as to have ma­te­ri­ally harmed not just him, but an en­tire group of his fel­low cit­i­zens, he can­not sue ei­ther.

More gen­er­ally, the re­sult of the fed­eral law of stand­ing, New­man as­serts, is largely to in­su­late many gov­ern­ment of­fi­cials from any ju­di­cial scru­tiny of their ac­tions, no mat­ter how un­law­ful. He is also dis­mis­sive—per­haps too much so—of the con­ven­tional ar­gu­ment that with­out some kind of lim­i­ta­tion on who can bring a suit for gov­ern­ment mis­con­duct, the fed­eral courts would be over­whelmed with them. New­man re­sponds that friv­o­lous law­suits can eas­ily be dis­missed at the out­set; while this may be a bit facile, it must be ad­mit­ted that re­cent Supreme Court ju­rispru­dence has made it con­sid­er­ably eas­ier for fed­eral courts to dis­miss “im­plau­si­ble” law­suits be­fore they get un­der way.

New­man also ad­dresses the ar­gu­ment that the cur­rent doc­trine nar­rowly lim­it­ing a per­son’s stand­ing to sue gov­ern­ment of­fi­cials is nec­es­sary to al­low such of­fi­cials to take dis­cre­tionary ac­tions with­out hav­ing to fear that they will con­stantly be sec­ond-guessed in the courts. He points out that other judge-made doc­trines, such as ab­so­lute im­mu­nity for pros­e­cu­tors and par­tial im­mu­nity for po­lice, have been de­vel­oped by the courts to pre­vent such a dan­ger—though he is crit­i­cal of the reach of those doc­trines as well.

On the level of pol­icy, New­man notes that the doc­trine of limited stand­ing is said to be rooted in no­tions of sep­a­ra­tion of pow­ers and ju­di­cial re­straint. In the words of the Supreme Court, it “serves to pre­vent the ju­di­cial process from be­ing used to usurp the pow­ers of the po­lit­i­cal branches” (Clap­per v. Amnesty Int’l USA, 2013) and “con­fines the fed­eral courts to a prop­erly ju­di­cial role” (Spokeo, Inc. v. Robins, 2016). New­man says that, as a gen­eral mat­ter, he fa­vors ju­di­cial re­straint, for “only self-im­posed ju­di­cial re­straint keeps our valu­able in­de­pen­dence from tempt­ing us to over­step our bounds.” But when self-re­straint is car­ried to such lengths as to in­su­late from any ju­di­cial re­view huge swaths of gov­ern­ment con­duct, it de­parts from the equally his­toric role of the courts as a check on ex­cess by the other branches of gov­ern­ment. If the courts, the ul­ti­mate ar­biters of what fed­eral law is, can­not be counted on to de­ter­mine when that law has been bro­ken, who can?

Al­though one might want to ex­er­cise some cau­tion be­fore adopt­ing New­man’s sweep­ing no­tion that there should be vir­tu­ally no limit on the right of an Amer­i­can to sue any gov­ern­ment of­fi­cial he be­lieves is break­ing fed­eral law, New­man at least makes a per­sua­sive ar­gu­ment for eas­ing the re­stric­tions that now limit the abil­ity of al­most ev­ery­one to chal­lenge gov­ern­ment mis­con­duct in fed­eral court. Some might ar­gue that cur­rent events demon­strate the need for such broad­en­ing.

My own view is that the con­cept of stand­ing as ap­plied to al­le­ga­tions of un­law­ful gov­ern­ment ac­tions has be­come so hope­lessly vague as to al­low judges to reach what­ever re­sult they want in a given case un­der the guise of grant­ing or deny­ing stand­ing. As Jus­tice John Mar­shall Harlan II, the most thought­ful con­ser­va­tive judge on the War­ren Court, com­plained in 1968, the con­cept of stand­ing is a “word game played by se­cret rules.” Harlan was com­plain­ing about the broad no­tions of stand­ing adopted by the War­ren Court, but the same com­plaint ap­plies equally well to the nar­row no­tions of stand­ing adopted by the cur­rent Supreme Court. Con­cepts like “con­crete in­jury” or “in­jury in fact” are so vague as to be read­ily ma­nip­u­lated to fa­vor a judge’s per­sonal agenda.

I would there­fore fa­vor re­plac­ing the cur­rent doc­trine of stand­ing with much more spe­cific, and nar­row, rules about who can or can­not sue for gov­ern­ment mis­con­duct. But I am pes­simistic that the cur­rent Supreme Court will pro­mul­gate such rules, let alone take New­man’s sug­ges­tion and scrap the con­cept of stand­ing al­to­gether. In the An­gloAmer­i­can sys­tem of law, with its de­vo­tion to ju­di­cial prece­dent, judges tend to be mired in the past, and changes come slowly, if at all.

Nev­er­the­less, pre­cisely be­cause the law of stand­ing is made by judges, judges can un­make it as well. And a law of stand­ing that is so vague as to be eas­ily ma­nip­u­lated is, in re­al­ity, no law at all. The whole busi­ness of stand­ing there­fore re­quires a fresh look. If this ever hap­pens, it will only be be­cause of strong, per­sua­sive, and pro­gres­sive judges like Jon O. New­man.

Judges Jon O. New­man and Denise Cote at the Sec­ond Cir­cuit Ju­di­cial Con­fer­ence in 1997, with Judge New­man im­per­son­at­ing Carnac the Mag­nif­i­cent, the char­ac­ter cre­ated by Johnny Car­son on The Tonight Show

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