Contributor, The Volokh Conspiracy

In an interview with Mark Joseph Stern of Slate, Senior Circuit Judge Damon Keith of the U.S. Court of Appeals for the 6th Circuit appears to accuse two of his colleagues of having “racist attitude[s].” Specifically, Keith suggests that this attitude explains why a three-judge panel rejected a recent challenge to changes in Ohio election laws in Northeast Ohio Coalition for the Homeless v. Husted, a case in which Keith wrote a lengthy and impassioned dissent.

Here’s the relevant portion of the interview:

Your most recent dissent criticized a ruling that did not, in your view, provide equal justice. Why did you include a gallery of slain civil rights heroes?

I wanted to dramatize the racist attitude of the majority. Look at those pictures. These are men and women who died for the right to vote. I was really so hurt by the decision of the majority of the court. My grandparents lived in Georgia, and they were not allowed to vote because of racism. I thought about them.

And you know, I was so disheartened by the attitude of Judge Boggs and Judge Rogers [the judges in the majority]. Thurgood used to say to us at Howard Law School, “dissents are very important.” And indeed, he’d quote cases where dissents were used. And this may sound trite to you, but in a dissent, you don’t have to get that second vote!

From my read of this section, it seems that Keith is accusing the panel majority — i.e. Judge John Rogers and Judge Danny Boggs — of harboring a “racist attitude” and that this attitude explains their decision in the case. While it is possible that Keith was making a more generic reference to the majority in the state or the nation, that seems unlikely given the question focused on his dissent in this case and that it was his dissent that apparently prompted the interview in the first place.

Strong words are nothing new on the 6th Circuit. Back in 2002, judges on the court traded charges and counter-charges over alleged procedural irregularities in Grutter v. Bolinger and other cases. But it has been some time since intra-court discord has spilled into print.

The timing of Keith’s remarks are also interesting. Earlier this week, NEOCH filed for en banc review of the decision and simultaneously moved to recuse one of the court’s judges, Alice Batchelder. Might the state respond with a motion to recuse Keith? Given his comments, such a motion would not surprise.