The MVP of the Second Circuit

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 seven-member 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 pre-guidelines 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 Anglo-American 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.