Discretion, the Rule of Law, and Political Ideology:

By Orin Kerr on April 13, 2009 8:29 pm

Last week, I posted the facts of the Third Circuit’s en banc decision in Pierre v. Attorney General and asked readers to chime in with what they would do if they were judges. Recall that this was the case with the inmate who was to be deported to Haiti where he would likely starve to death for lack of medical attention. The legal question was whether this amounted to “torture” given the requirement that torture must be an intentional act.

The results were quite interesting in light of the political breakdown of the respondents. Among readers who self-identify as politically right of center, 73% would vote that Pierre must go. Among readers who self-identified as neither conservative nor liberal, 68% would vote that Pierre must go. On the other hand, there was a very different trend among readers who identified as politically left of center: Among those readers, only 35% would vote that Pierre must go. (There were 1,563 votes altogether, with 738 from right-of-center readers, 429 from left-of-center readers, and 396 from “other”.)

Why these differences? Surely one reason was that both the facts and the legal questions had a certain political valence. Political conservatives would be more likely to see Pierre as unsympathetic and not deserving of mercy: After all, he had tried to kill his girlfriend, and he was only asking to be the permanement ward of the state because he had failed in his effort to commit suicide. On the other hand, political liberals would be more likely to think of John Yoo’s memos and debates on the meaning of torture, if not capital punishment more broadly (which liberals oppose twice as frequently as conservatives). So there was clearly some political valence in the case that could explain the differences.

At the same time, I think there is a second reason: There are recognizable differences between how liberals and conservatives today tend to talk about and think about the role of the judges. Of course, I’m painting with a super broad brush here, and the broad brush can’t capture a lot of nuance. But generally speaking, conservatives today are more likely than liberals to envision a judge’s job as following the law. In contrast, liberals today are more likely than conservatives to see a judge’s job as doing justice where the law is unclear.

To some extent, this isn’t news. Recall the Rasmussen poll last fall that asked voters “Should the Supreme Court make decisions based on what’s written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?” The differences between Obama voters and McCain voters were stark: 82% of McCain voters thought the Supreme Court should follow the written Constitution and legal precedents, while only 29% of Obama voters thought so. In contrast, 11% of McCain voters thought the Supreme Court should follow the Justices’ sense of fairnesss, while 49% of Obama voters thought they should.

I suspect we’re seeing some of that dynamic in the reader poll in the Pierre case. In the case of Pierre, I think the mindset of following the law tends to lead to a pretty clear result that courts should not interfere with his deportation. The regulation required intent, and Pierre didn’t claim that anyone would intentionally torture him; nor did he claim that anyone would know he was starving to death. Rather, he made a claim as to the likelihood of an event, arguing that what he subjectively would likely experience would be pain equivalent to what a person would experience if intentionally tortured. It seems to me that this just isn’t enough under the law; indeed, the en banc Third Circuit voted unanimously not to intervene.

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The alternative mindset is that if a court observes enough ambiguity to say the issue is unclear, the judge can then fashion a result that appears the most just. There were a couple of ways you could try to do that. You could focus on the intentionality of the likely detention, or you could assume that someone would likely eventually know that Pierre was starving. I think both of these arguments have a lot of problem as legal arguments (see the earlier comment thread, now at almost 200 comments, for the debates on this), but they were the kinds of arguments you would have to make to be able to say that Pierre could stay.

Given the political valance of the two choices in the Pierre case, it’s hard to estimate how much effect if any the differences in approach might have on the voting rend. But my own sense is that these differences in approach are real ones. To be sure, both liberals and conservatives end up interpreting the law under the influence of their policy views and cultural orientation. But there is also a difference in approach, with conservatives more likely to think judges are bound by the law and liberals more likely to think that the law is ambiguous and judges should do the right thing within that ambiguity. These attitudes get overly simplified when politicians speak of them, but we can see the two roles echoed in that setting, too: conservative politicians tend to say the Justices should “follow the law, not make it,” while liberal politicians tend to speak of Justices having “heart” and “empathy.” Those slogans reveal an important grain of truth, I think.

Where do these different attitudes come from? My sense is that they are mostly if not entirely a product of history. The highest profile legal debates in the last 50 years focused on whether the Supreme Court should reject then-existing precedents and constitutionalize political developments popular on the left but generally unpopular on the right. Among those who oppose such developments, it’s natural to gravitate to a follow-the-law position: After all, rule of law means the new approach is rejected under the old precedents. On the other hand, among those who favor such developments, it’s natural to gravitate to the judicial-discretion approach: After all, seeing ambiguity and favoring judicial discretion means the old approaches can be replaced with new ones.

Over time, these positions become habitual in the absence of some other competing interest. And they lead to the predictable common criticisms of the other side, too. You know the drill: To conservatives, liberals can be judicial activists who ignore the law to pursue public policy; to liberals, conservatives can be dishonest ideologues who do the same thing but hide their preferences behind neutral-sounding labels.

Anyway, as I said, this is really painting with a broad brush. Flip the politics, and these tendencies can go haywire in a hurry. But I do think there is a real difference there between how liberals and conservatives today generally tend to approach the role of the courts, even if these differences are largely just historically contingent.

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