Law's Alchemy
Expanding on an argument made by various bloggers (including Noah, of course), Jack Balkin provides a really helpful lens through which to view the controversy over Sotomayor’s ruling in Ricci:
(Sotomayor’s critics) are running together two different ideas of impartiality. One principle is that judges should be impartial in interpreting the law — they should apply the law no matter what its content happens to be, regardless of who comes before them. The second idea is that the content of the law should have a certain character — it should allow for no distinctions whatsoever based on group membership or personal characteristics. But suppose the law allows for such distinctions, for example, as current law does for certain affirmative action programs. Then the first principle of impartial application of the law whatever it may be conflicts with the second principle of neutrality with respect to groups, or, in this case, colorblindness. This problem happens all the time.
So by the second definition, impartiality requires activist judging. A lot of it. But Balkin’s point also hints at why the first definition — the type of impartiality Balkin says “we normally expect” judges to demonstrate — seems odd to me as well. It portrays judges as orienteers, making their way through the American wilderness guided only by a compass pointing straight north to Constitutional ideals. But any judge outside the Supreme Court — and to a certain extent, thanks to the pressures of stare decisis, Supreme Court justices as well — are bound not just by fidelity to the Constitution (much less the principles presumed to be behind it), but to a body of statutory law and precedent. (If they weren’t, Supreme Court decisions wouldn’t matter at all.)
And the fingerprints of circumstance, of partiality, are all over this body of law. Precedent is the product of case law, the application of principle and statute to a particular set of circumstances, and honoring it often requires determining which “framework case” is most similar to the one at hand. No one who has spent any time in Washington believes that federal laws are any sort of pure expression of Constitutional principles. Even the Constitution itself exists in its current state only because of a series of compromises and negotiations. (No one who has read Catherine Drinker Bowen’s excellent book Miracle at Philadelphia could possibly mistake the Constitution for a set of tablets handed to George Washington on Mount Sinai.)
But even as we admit that the way that laws get made looks like, well, the manufacture of sausage, we expect that judges should stay unwaveringly loyal to these laws. (Any accusation of “legislating from the bench” implies that judges must remain bound by law, not principle, until instructed to do otherwise by a legislature.) We allow the people making law to represent their constituents — in fact, we generally encourage them to resemble their constituents and celebrate their own biographies — but we deny the same sort of personality to the judges who are instructed to interpret the products of politicians’ labor. Those who make law and those who apply it appear as completely different kinds of people, creating an odd divide that often makes it difficult to see the connection between the law of policy and the law of the judicial system at all. Furthermore, the double standard encourages politicians to develop larger-than-life personalities, while discouraging judges from demonstrating personality at all (see also: “pushy,” “sharp-tongued”). As Adam Serwer of the American Prospect put it on Twitter: “If there’s no place for empathy in the courtroom, why don’t we just get Google to design our new robo-judges?”
The other problem is the way the public views law itself. The notion of the “rule of law” requires some odd alchemy. At some point in the process, ugly, compromise-filled, politically contingent legislation becomes stone-encoded, immutable Law. Alternatively, a detail-filled, context-dependent case becomes a guiding light of Precedent. It makes perfect sense that the bodies responsible for performing both of these transmutations should acquire outsized significance in the public eye. The alchemists of Precedent — Supreme Court justices — are nine beneficiaries of this; the Senate is gearing up for a massive confirmation battle over a judge whose two prior federal appointments it approved without incident, and no one seems to think this is strange at all. But in order for the transformation of legislation into Law to be meaningful, extraordinary symbolic power must be given to the act of signing it into law — done, of course, by the President.
The imperial Presidency and the rule of law are often seen as antagonists, and in many cases that’s true. But the very notion that the law is greater than any human being, including those who made it and those who interpret it, requires enhancing the stature of the man at the top.
The discussion falls back upon the idea of separation of powers, which was a key element of establishing a government by the people and for the people. The idea of checks and balances were placed there in an attempt to ultimately keep the power of government in the hands of the people. The legislature is placed into office by a vote of the people. They are allowed to write the laws of the land. The judiciary interprets the laws. Any law passed must pass constitutional muster. It cannot violate constitutional guarantees to the citizenry. Though it hasn’t always worked as intended, nevertheless that is how the system was intended to work. Legislating from the bench is a breach of judicial duty, as it extends judicial authority into areas constitutionally intended to be governed by the people through the legislature.
Though the Dred Scott decision was not technically overruled by the Supreme Court itself, the Court stated in the Slaughter-House Cases of 1873 that it had already been overruled by the Fourteenth Amendment to the Constitution ( 1868). The USSC decision of Plessy v.Ferguson of 1896 was certainly precedent setting, but was subsequently overturned by the USSC when the Warren court ruled on Brown v. Board of Education in 1954. Every and any ruling, including rulings of the United States Supreme Court, is subject to review.
The first standard you describe is the traditional standard, and in my view the correct judicial standard. The affirmative action case law you mention all seem to fail to pass muster under the equal protection clause of the Fourteenth Amendment, which enunciates the English legal tradition of hundreds of years duration in which all comers are equal under the law.
“but we deny the same sort of personality to the judges who are instructed to interpret the products of politicians’ labor.”
And it’s a good thing we do.
The odd divide you mention is there for a very good reason. The problem with judges reviewing German law or Moroccan law to guide their decisions in the US is that that is not their place. In reality a judge that would do this does not use all foreign laws, but selectively picks and chooses which laws from foreign countries will prevail upon them to help form their opinion. Thus they do not rule based on US law, nor do they rule on German law, but they decides on the basis of their own choosing, a law of judicial choosing, if you will. And this is not in the interests of a free people.
It is one thing to review case law and to rely upon or overturn legal precedent. It is quite another to use empathy as the guiding basis for a legal decision. That is not law at all, but rather is the absence of law. If the law of the land is bad law, it is up to the people to change it. But the overriding consideration for a nation to remain free is that the people must decide, not the judges.
If you have a different idea of how the country should function, then you are free to advance it. But is not the law of the land without the will of the people consenting to such changes.
— nicholas · May 29, 11:28 PM · #
Re Adam Serwer, I think the robo-judge formulation gives short shrift to the acumen required to interpret existing law, Constitutional or otherwise. That doesn’t mean I want judges to be “empathic.” That’s quite a false choice: either Sotomayor or data-processor.
— Blar · May 30, 12:17 AM · #
To the contrary. That’s exactly what they’re meant to do.
The law is a wide, deep, and very often contradictory pool. The cases that ultimately come before the Supreme Court are generally ones where the law can be argued, legitimately, in favor of both sides – because laws are often in contradiction.
That’s what the Supreme Court is there to do – to resolve these contradictions by finding for one of the sides. Otherwise there’d be no need for nine justices; nine lawbooks would suffice. No justice has ever limited themselves to simply “ruling based on US law”; if that were sufficient we would have no need for a Supreme Court.
— Chet · May 30, 02:33 PM · #
As Blar pointed out above, the interpretation of law, with its competing mandates for a free and open society, is not the work of robots, or of an open law book as you say. But interpreting the law is decidedly different from creating law or legislating law. That is why a judge basing a decision on laws of other lands, or “finding” constitutionally protected rights that have not been listed in the constitution is dangerous ground, because it elevates the role of the judge to more of a king. It moves power away from the people and places it in the hand of the judiciary. It is not how our government was intended to run, and it is not in the interest of a free people.
If the people chose to live in the fashion you suggest, they are free to do so. But they must first amend the constitution under which we are all governed.
— nicholas · May 30, 07:31 PM · #
Our judges aren’t basing decisions on the laws of any other nation, but there’s a whole world of jurisprudence out there beyond our own, a whole world of legal reasoning, and much if not all of it can be applied, as instructive to how other jurists interpreted law. I would hope our justices would take advantage of it.
I mean, every law student reaches for their Blackstones – you think that’s American law he was writing about? In 1760?
Also, you should update your copy of the Constitution – mine has something called the 9th Amendment.
— Chet · May 30, 09:18 PM · #
Well, you’re getting closer.
— nicholas · May 30, 11:35 PM · #