Vanity Fair has a profile of Federal Judge Denise Cote (of the Southern District of New York) that revolves around her involvement in the Apple–Amazon e-books antitrust brouhaha. The article is helpfully titled “The Judge That Apple Hates” for anyone who didn’t know how the case turned out.


I wrote about that case when the Department of Justice first filed it, voicing my support for the DOJ’s claims. Whatever one thinks of Amazon’s impact on the book publishing world, it’s hard to dispute that Apple and the publishers entered into a collusive agreement for the purpose of raising prices — the primary evil our antitrust laws are designed to prevent. In the end, all the book publishers settled, and the DOJ went to trial against Apple alone. Judge Cote ruled in favor of the DOJ, and the case is now on appeal.


Vanity Fair’s description of the opening statements at the trial caught my eye:


Only 10 days [before trial] Cote … had shared a “tentative view” on the merits of the case with the lawyers, just as she had done in many other cases and as she said she would do here if both sides consented. Stressing it was tentative—as she noted, she had only reviewed the court papers and had yet to hear the testimony and arguments—she said she believed the government would be able to prove that Apple “knowingly participated in and facilitated a conspiracy to raise prices of e-books.”


So now, playing a clearly losing hand in Cote’s courtroom, [Apple’s lawyer Orin] Snyder chose to meet Cote head-on—and challenge her fairness. To a judge who prides herself on her scrupulousness, it was a declaration of war. “No party, big or small, whether the biggest company in the world or an individual defendant, should start trial with the deck stacked against it,” he pleaded. “So we respectfully and humbly ask this Court to erase, hit the delete button on any tentative view that might exist in the Court’s mind today.”


Has corporate America and its lawyers become so accustomed to winning in the courts, so self-assured by judicial recognition of their “right” to manipulate elections and to quash consumer lawsuits with arbitration agreements and insurmountable legal standards, that one of the most profitable and valuable corporations in the world feels ‘the deck is stacked against it’ if a judge fails to give their self-serving assertions a round of applause? 


You can see for yourself the “court papers” that Judge Cote reviewed, i.e., the DOJ’s Pre-trial Memo and Apple’s Pre-trial Memo. The DOJ’s introduction has 23 citations to the evidentiary record; Apple’s has zero. As I tweeted last year: “if you’ve gone more than a page without a cite to a case/statute/etc or the record, you’ve gone astray.” The rest of Apple’s memo fares little better, page after page of generalized assertions about the evidence followed by unsupportable hyperbole like “There is simply no evidence to support a finding that Apple reached an agreement with two or more publishers to increase prices or otherwise restrain trade in the e-book market.” I’m not impressed, and it doesn’t seem like Judge Cote was either.


I’ve discussed before the consequences of judges expressing their opinions about cases back in early 2012, when a Philadelphia judge overseeing a priest sexual abuse case said in court, while denying the Archdiocese’s request for a jury panel question about whether the potential juror believed there was widespread abuse within the Church, “Anybody that doesn’t think there is widespread sexual abuse within the Catholic Church is living on another planet.” As I wrote then:


Imagine that: a judge saying what they really think about an issue relating to a case. There is a long-running strand of American politics that maintains judges should be as cold, inhuman, and calculating as possible, with even the Chief Justice of the United States falsely claiming that his job involves nothing more than calling balls and strikes like an umpire. … Law involves living, breathing people in difficult and complicated situations that rarely line up with simple rules of thumb. When we deny that judges have their own thoughts and feelings, we don’t make those thoughts and feelings go away, we just put them where we can’t see them.


And so it is in Judge Cote’s case when she gave her tentative opinion about the merits of the case. To me, if a judge can’t get a preliminary sense of a case’s strengths and weaknesses from the pretrial submissions, then either the parties have wholly failed to describe the case appropriately or the judge is simply unprepared to hear the case. It’s like a surgeon showing up in an operating room, oblivious to the patient’s history and labs and scans, and asking “so what do we have here?” as they start cutting.


Earlier this year, Apple sought Judge Cote’s recusal from the damages component of the consumer cases. One of the leading cases on comments by federal judges — and whether they warrant recusal — is, coincidentally, an antitrust case, United States v. Grinnell Corp., 384 U.S. 563, 583 (1966), and it’s still relied on today, including in the Second Circuit where Judge Cote sits. In Grinnell, the lawyer for the defendant repeatedly asked the Court for a preview of the relief that would be ordered if the Government prevailed. After initially rebuffing the request, the Judge pointed out that he might order harsher penalties than the government was requesting; the defendant was, shall we say, displeased, and so demanded the judge’s recusal.


As the Supreme Court eventually ruled in Grinnell, “The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. … Any adverse attitudes that Judge Wyzanski evinced toward the defendants were based on his study of the depositions and briefs which the parties had requested him to make.” That has been the rule for a half century now, even after Congress amended the recusal statute. See, e.g., Liteky v. United States, 510 U.S. 540, 555 (1994)(“opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”).


It’s a sensible, realistic rule; it’s absurd to pretend that judges do not or should not think through the cases in front them. Judges shouldn’t jump to firm conclusions before trial, but it would be foolish and counterproductive to expect them not consider the direction the case is likely going.


Indeed, Judge Cote’s remarks represent the most benign form of judicial commentary, i.e., a simple statement that it appears a party has gathered in discovery sufficient evidence to meet their burden of proof. I’ve never seen any correlation between judicial candor and the appearance of partiality in the court’s actual rulings. If Apple “hates” Judge Cote, it’s the same kind of “hate” a child has for a teacher that catches them breaking the rules.