Richard Drew/AP Images

US District Court Judge Shira Scheindlin, New York City, May 2013

Achieving justice for racial discrimination has long been fraught with obstacles. During the civil rights era, it was southern governors and school boards who blatantly obstructed court orders to desegregate schools. In more recent years, the burdens have been erected not by southern politicians, but by the courts themselves. The Supreme Court has made it virtually impossible to prove racial discrimination short of compelling evidence that specific individuals were intentionally targeted because of their race. Proof that government policies or practices have widespread discriminatory effects on African-Americans is not enough.

On that rationale, the Supreme Court in 1984 upheld Georgia’s execution of a black man for killing a white victim, despite evidence that in Georgia, even after controlling for thirty-nine other possible variables that might explain the difference, defendants who killed whites were 4.3 times more likely to get the death penalty than those who killed blacks. And by striking down a core part of the Voting Rights Act last term, the Supreme Court has decided that states and localities that had discriminatory voting practices in the past no longer need to have changes to their voting laws vetted to ensure that they don’t continue to discriminate.

Now, a decision by the US Court of Appeals for the Second Circuit suggests that there is no limit to the obstacles courts can raise to claims of racial discrimination. Not only did the Court of Appeals temporarily stay any remedies arising from a landmark lower court decision finding that the New York City Police Department had engaged in intentional discrimination in its “stop-and-frisk” program; it also took the extraordinary step of removing the lower court judge from the case.

The Second Circuit decision came in connection with a preliminary motion in an appeal of Floyd v. City of New York, a class-action lawsuit challenging the New York Police Department’s “stop-and-frisk” policy. (Full disclosure: the case was litigated by the Center for Constitutional Rights, where I began my legal career three decades ago and have been a board member.) In August, US District Court Judge Shira Scheindlin issued a 198-page decision in the case, finding that the NYPD intentionally stopped and frisked blacks and Latinos at much higher rates than whites, and had stopped and frisked thousands of city residents without the constitutionally required basis for doing so—“reasonable suspicion” that they were engaged in some criminal conduct. In 2011 alone, the NYPD stopped more than 680,000 people, 84 percent of whom were black or Latino, and only 9 percent of whom were white. From 2004 through 2012, police found drugs or guns in less than 2 percent of all stops.

The city appealed, and sought a stay of any remedial measures pending the outcome of the appeal. On October 29, the court of appeals heard arguments on that motion, and on October 31 granted it. This in itself is not a wholly surprising result. Appellate courts not infrequently maintain the status quo where a lower court decision under appeal would require significant outlays of money from the appealing party—although they are less likely to do so where, as here, there have been extensive findings of ongoing unconstitutional conduct.

But the court of appeals then went further, entirely on its own initiative, and ordered Judge Scheindlin’s removal from the case. The city had not even requested that remedy. The court criticized Judge Scheindlin for violating norms of impartiality in two ways: by deciding to take on the case as a “related case” at its outset, i.e., a case related to one the judge has already decided; and by making statements to the media while the case was ongoing. Because the city had not even raised these issues, the court ruled without affording the judge a chance to explain her actions and without hearing from the parties themselves on the matter.

Deprived of an opportunity to explain herself beforehand, Judge Scheindlin issued a brief, dignified statement in her own defense in response. She explained that she took the case as a related case because plaintiffs alleged that the city had violated an order that she herself had issued in a prior case similarly challenging the city’s stop-and-frisk practices. That is an entirely reasonable basis for identifying a case as related. The “related case” rule permits district court judges to take cases that are related to cases they have previously decided, rather than having them randomly assigned to a new judge. The rule is designed to encourage efficient resolution of disputes. Judge Scheindlin was well within her authority in taking the case.

Apparently lacking a sense of irony or shame, the court of appeals panel hearing the motion in Floyd then took the unusual action of assigning the full appeal to itself, departing from the ordinary practice of having the full appeal assigned to a new panel selected at random. It offered no explanation for doing so. Evidently when it comes to “related” cases, what’s sauce for the district court is not sauce for the court of appeals.


Regarding the judge’s allegedly improper statements to the media, the judge is her own best defender. Here’s what she said in her statement after the court of appeals rebuked her:

All of the interviews identified by the Second Circuit were conducted under the express condition that I would not comment on the Floyd case. And I did not. Some of the reporters used quotes from written opinions in Floyd that gave the appearance that I had commented on the case. However, a careful reading of each interview will reveal that no such comments were made.

The members of the court of appeals panel didn’t feel the need to do “a careful reading.” They didn’t even feel the need to hear from the judge or the parties before deciding an issue that neither party had raised or briefed.

The court of appeals’ precipitate removal of Judge Scheindlin is all the more disturbing when one considers that, while a New York City mayoral candidate, Bill de Blasio filed a brief with the court of appeals supporting the plaintiffs and saying that remedies should proceed without delay. He will almost certainly drop the appeal after he takes office on January 1. That would leave the district court decision in place, and, but for the court of appeals’ decision, would have left Judge Scheindlin in charge. Foreseeing this, the panel exploited a routine stay motion in order to reach out, unrequested, to rebuke Judge Scheindlin when it knew it might not get another chance, and remove her from a case over which she should have continued to preside.

So here’s where we stand. A district court judge issues careful and extensive findings, based on months of trial testimony and meticulously elaborated in a 198-page decision, that the NYPD intentionally targeted black and Latino New York residents for unconstitutional stops and frisks over many years. And she is rewarded by a court of appeals that, on its own initiative, without even hearing from the parties, and apparently without bothering to distinguish between the judge’s out-of-court statements and her written opinions, has now stayed all remedies, chastised the judge, and removed her from the case. That’s what you get for mandating equal protection of the law.

—November 6, 2013