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January 13, 2006

Arguing Past Each Other

Kevin Drum points to a Michael O'Hare post that succinctly differentiates the divide on the Judiciary Committee, and by extension between the Democrats and Republicans generally on the purpose of judges:

I also have a sense of a man with, as my friend Ed Reilly once said of another public figure of our acquaintance, an "unrelenting instinct for the capillary". He was described by various witnesses, some admiringly, as always deciding cases on the narrowest possible grounds. This is generally a virtue in a judge, but not always and especially not always in a judge of high or highest appellate jurisdiction. Brown v. Board of Education could have been decided like Plessy, or so narrowly as to demand only (say) equal per-pupil spending, but that wouldn't necessarily have been a better holding. Alito knows the law, but he doesn't seem to know, or care about, The Law. Every issue in the hearings was immediately reduced by the nominee to a technical question of almost bureaucratic rule manipulation. This approach is a good one for nearly all the cases courts hear, but it's not what the Supreme Court is about.

He doesn't have a screw loose; what he has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice. Not a case came up for discussion in which he registered that one or another outcome was just wrong, outrageous to a sense of decency, or to him. He's on record in a memo as believing that to shoot an eighth grader, known not to be armed, who was trying to climb over a fence in escape, is a proper use of deadly force by a policeman. In a discussion of immigration cases that have been regularly occasioning inexcusable, vile, un-American heartbreak on people who missed obscure deadlines or violated arcane requirements, all he could say was that the courts get bad transcripts and it was hard to find translators for some of the plaintiffs, but that was a problem for Congress. It wasn't exactly Pilate washing his hands, but the man appears to be completely comfortable dealing with frightful social wrongs by moving the issue down the hall to another office. Sometimes the Court has to do this, but to Alito it's an especially good day's work, not a disappointment.

OK, what O'Hare is saying is that a judge's job — particularly the job of a Justice on the Supreme Court — is to settle cases according to abstract ideas of Justice and Right, or "The Law" as O'Hare put it. In other words, the law and what it says is not the end of a judge's job, but the starting point. The judge should not only decide on the case, but also on the advisability of the law.

This is fine as far as it goes, but it is a perversion of our system that would require other adjustments to make logical sense. You see, it is the legislators under our system who are intended to decide if a law is good and just, and if the consequences of enforcing the law are Right. In other words, those who make the law are charged with ensuring Justice and "The Law" are met by the actual legal code. Only in extraordinary cases should a judge depart from the law, and those cases are generally when the law has consequences manifestly different from those expressed by the legislators as their aim. If, for example, following the law strictly in a particular case would cause a law intended (as shown by Congress' findings on the law, for instance) to prevent excessive appeals would actually result in a defendant not getting any appeals, a judge is justified in setting aside the strict interpretation of the law until such time as Congress amends it.

For the Left, judges are legislators in a real sense: they must decide whether a law is Right and Just (by the Left's standards, mind you). For the rest of us, a judge's job is to decide what the law allows and compels: to judge, not legislate.

And again, if that's the system you want, that is OK. I don't think that it's inherently wrong: it's just not the system we have. But there are some flaws with simply taking our system as is and letting judges decide the law rather than the law's application to a case. Let's look at them.

The first problem is that judges at the circuit court and Supreme Court level, those whose decisions on the law would have wide and binding power, serve life terms and are appointed: they are not accountable to the voters and cannot be easily removed for making bad decisions. What happened to Daschle or Gingrich when they messed up cannot happen to a Federal judge, who can only be removed by impeachment. Unless you want to live in what amounts to an oligarchy, this needs to be fixed. Either limiting judges to a short tenure (say, 10 years) or making them periodically stand for election would do the trick.

The second problem that I see is that the law becomes unpredictable: since any case can result in changes to the law, it would become impossible to understand the law. This means that behaviors which appear legal may not be. A corporation, for example, could be acting as corporations always have under both statute and common law, but a single corner case could overturn all of that and make past legal actions suddenly illegal: effectively, having the judges decide the law to this extent would create a system of ex post facto laws. Such unpredictability would dramatically limit the scope of freedom not just of corporations, but of individuals. Would you fly a small plane if you could be penalized for landing in someone's field, even though that was the common understanding of what was legal when you did it? There would have to be some kind of prevention against ex post facto laws or the search for what is Just and Right would fail quickly.

The separation of powers doctrine would be dead. With legislative and judicial powers combined in one set of people, a vindictive judge would have extensive and near-dictatorial powers. Imagine, for example, a judge who believed marijuana dealers should be hung, or conversely one who believed that pedophilia should not be criminalized. Do you really want such a person having the power to act on his beliefs, or should he be able to do so only within the confines of the law as written, and as interpreted by precedent? If you are OK with that, you would need a much more extensive appeals system to prevent such powers from being abused. In particular, you would need to ensure that judges' findings of fact and the law would both be appealable.

What would the duties of legislators be? Clearly, their budgetary authority would remain, but not their regulatory authority. Would the Congress become mostly a stage for grandstanding, plus passing the budget and declaring war, with no other real powers? If laws are basically just suggestions, why not throw out the statute law altogether and allow law to develop entirely by common law means? It would make more sense, and might even do less damage to the legal system.

On the other hand, it seems to me that what the Congress as a body really wants is to have the power to make laws, but not the responsibility for the outcomes. No dice, from my point of view. Others may differ.

Posted by jeff at January 13, 2006 9:35 AM

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Congress wants to be a slot machine: you put in a little money, if your cherries come up a lot of money comes out.

Posted by: Dave Schuler [TypeKey Profile Page] at January 13, 2006 11:03 AM

They are called Supreme Court "JUSTICES", not "judges". They are to weigh the merits and constitutionality of laws and previous judicial julings in the context of the constitutional letter, intent, and jurisprudence. Someone said that Brown, if it were decided on narrow technical interpretation would NOT have been decided thusly. It had to be decided against the backdrop of JUSTICE, for "separate but equal" to be overturned. That is the function of the Supreme Court.

Many fine people adjudicate technical readings of the law every day. The Supreme Court is a much loftier body, and for it to hold a place in the checks and balances of government, it must be concerned with justice and intent, as well as written law.

Posted by: Anonymous Coward at January 13, 2006 11:30 AM

As I said, the two sides disagree on the purpose of judges.

As far as Brown goes, a narrow technical reading would have prevented Plessey in the first place: the Constitution did not give States the power to discriminate on race; it explicitly denied them that power (via amendment after the Civil War).

Posted by: Jeff Medcalf [TypeKey Profile Page] at January 13, 2006 1:00 PM

Dave, you are correct in your leading points but stray on your conclusion. Brown was decided on its constitutionality, and the decision written so as to be broad in its effect state and local laws. But it wasn't a question of capital-J Justice; it was a question of whether the situation violated the Constitutional guarantee of equal treatment under the law. And the decision could have been written such that equal-funding solutions would have been (temporarily) deemed acceptable under the Constitution. But there is nothing in the SC's job description that mandates that they must always go for the BIG FIX.

And don't confuse a job title with some metaphysical, Platonic ideal. For example, over what does the President preside? If the authors of the Constitution had called the Supreme Court members "judges" instead of "justices" and left everything else currently in the Constitution as it is, it wouldn't change their fundamental roles and duties.

Posted by: ondigo at January 13, 2006 3:26 PM

ondigo, I believe you are misreading the format. The comments about Brown were via "Anonymous Coward" rather than Dave, who made the slot-machine comment.

Posted by: Jeff Medcalf [TypeKey Profile Page] at January 13, 2006 3:33 PM

Doh! Sorry.

Posted by: ondigo at January 13, 2006 6:29 PM