Disconnect on the Role of the Courts.

I am struck, watching the hearings, at the complete disconnect between the criticisms of many of those opposing Judge Roberts and a cogent view of the role of the courts. It seems that many of the criticisms are policy based — x or y rulings would lead to bad RESULTS — and make no reference whatsoever regarding whether such results are in fact the correct interpretation of the law (or the Constitution). Judge Roberts's repeated point was that he was committed to the law, and not to a political agenda, yet most of the criticism seems to be that he lacks a particular favored agenda on things like civil rights, the environment, etc. But certainly the critics cannot have it both ways, pissing and moaning that he might reject a substantive conclusion that they favor, yet demand that he not bring his personal views into the judging process. Unless they think that he will misinterpret the law in a way that follows his allegedly retrograde views and opposes their more "enlightened" views, it seems that their criticism should be about the laws as written, or the Constitution itself, and not about the jurist who interprets them faithfully. Demanding a Justice that would distort the laws to serve a particular end, be it civil rights, the environment, or what have you, is basically demanding a jurist who would be dishonest and violate his oath of office. Judge Roberts has naturally refused to be goaded into such silliness. The fact that folks like Kennedy and Schumer and Durbin keep settting that up as the test for their willingness to support him is appalling and speaks to the bankruptcy of their philosophies of government. (Not to be biased, several Republicans also seem to fall into the same exact trap regarding abortion, flag-burning, and the pledge of allegiance. They seem to think that the fact that they do not LIKE the results of various cases has something to do with whether they were rightly decided under the laws and the Constitution, and seem to think that their strong emotions on such issues should have some influence on Judge Roberts's future rulings. They are, of course, mistaken and equally suspect in their philosophies of government.)

In any event, I think Roberts comes out of this looking like the consumate jurist who knows precisely where his duties and loyalties must lie — to the law and the Constitution. Most of his critics come off looking like they are pandering to folks who don't know about or don't care about the proper functioning of the courts, and most of the Senators just come off looking ridiculous. It is particularly ironic to hear the demands of Senators (most notably Specter) that they not be treated like children when they seem so intent on acting like children. If they had the slightest inclination to follow the Constitution on their own accord, and to take seriously the limitations on their powers, they would not need to be rebuked quite so often and perhaps when the Court was forced to overturn some piece of legislation they would get more slack for an honest disagreement or mistake rather than whacked on the wrist for making a power grab.

Related Posts (on one page):

  1. Disconnect Part 3.
  2. Disconnect Part 2.
  3. Disconnect on the Role of the Courts.
Disconnect Part 2.

I see that in the hearings Charles Fried makes a point similar to mine. August company for me, less so for him. The professors complaining about Judge Roberts continue to fall into the same trap. The notion that the courts should be a beacon for some particular substantive agenda rather than simply for scrupulous adherence to the law and the Constitution is troubling, to say the least.

Regarding one of the comments suggesting that I assume there are correct legal answers, I would say that I do not assume it, I assert it as correct and am happy to defend that assertion as to most cases. Even as to the particularly difficult cases that cannot be answered by text, history, and other relatively concrete factors, there are still numerous rules of thumb or cannons of construction that guide a judge in resolving such uncertainty. To the extent such cannons are part of the established precedents, they too help reach the "correct" answer even absent certainty from text or history.

If what people are concerned about is Judge Roberts's tendencies in areas where there are still ambiguities after faithful application of text, history, and precedent, then I think he has laid that out pretty well. He would be modest and respectful of the authority of the other branches and in that respect is likely to uphold government action in such cases, for good or ill. A narrow interpretation of constitutional limits on federal power thus should please liberals who favor expansive federal power. But that same reserve might well mean that he will not offer exansive interetations of other aspect of the Constitution as well — those restricting government power relative to individual liberties. Once again, that is the same modest view, but with different potential policy outcomes. Either way, the tendency is not based on substantive social policy considerations, but on judicial considerations and balance-of-power concerns.

It is the social policy that critics and Senators keep harping on, not the judicial policy issues that might well have an influence on the "correct" answer. As to the judicial policy questions, if you want a justice who will be respectful and deferential to the political branches you cannot also insist on a judge who will be a champion of individuals asserting their potential, yet ambiguous, constitutional rights against those very political branches. The fight over an aggressive vesus a deferential approach to enforcing the Constitution is a valuable one to have and one that Roberts has indeed weighed in on. (I might well take a different view on that issue than he does, but his approach is certainly the paradigm of judicial restraint, which seems to get lip service from both sides.) The question of whether he will impose his social policy preferences on areas of ambiguity strikes me as precisely the wrong view of the courts and I, for one, would hope that jurists would studiously resist such an approach. Judge Roberts has been definitive about that point as well.

Disconnect Part 3.

Lots of the coments have attacked various notions of originalism and argued for the inevitable influence of a Justice's policy views on outcomes in at least close cases. A couple of observations.

First, I do think that a theory of originalism focused on the public meaning of speific words at the time they were used is indeed the correct (indeed, the sole correct) approach to interpreting written instruments, whether they be constitutions, statutes, or contracts. I think that conclusion flows inevitably from the bare fact that we have selected a written instrument to convey and enshrine our rights and obligations.

Second, while I think that a basic historical/textual analysis of the written instrument indeed resolves most of the questions that arise, I have already noted that such an approach does not resolve all close cases. Under those cases I have noted that we have canons (note the proper spelling this time -- I am educable, even if a naturally poor speller) of construction that provide an answer on how to resolve the ambiguity. (The cannons will have to be saved for those instances in which the canons do not adequately resolve an issue that is extremely contentious and cannot subsequently be resolved by the political branches.) I recognize that such canons do not have the inherent certainty or even "correctness" of textual rules, but at any given time they generally have the force of precedent and hence are correct within the particular legal/temporal context in which a given case is decided. Can those canons change over time to lead to different results in ambiguous cases? Of course, but even such changes are mediated by other structural rules such as stare decisis and hence one can ascertain whether a change in canons is "correct" based on the legitimacy of the process and reasoning through which the change is made.

Whatever the canon is at any given time, however, I would argue that its uniform application to all cases is the measure of a jurist's fidelity to the law and to the role of the courts. Whether we apply a liberty-favoring canon such as suggested by Prof. Barnett, or a deferential canon such as not overruling the political branches unless they violate some "clear" constituional command, we should apply them consistently regardless of whose ox is being gored. (I think that answers the commentator who asked whether the consequences of a decision influenced its correctness: The answer is no, the legal correctness of a decision is indeed independant of its effects. That is true of Plessy, Brown, and any other sacred cow one cares to raise on either the right or the left. I am not saying Plessy or Brown was right or wrong legally, just that the answer to the question has nothing to do with whether the results were universally acclaimed or condemned.) If we do not like the result, do not blame it on the jurists, blame it on the law and change the law, by constitutional amendment if need be. The complaint that amending the Constitution is difficult moves me very little. If the consequences of a bad decision are so overwhelming as to get everyone into a lather, you would think that would be sufficient to motivate folks to do the hard work of amending the Constitution. If the real problem is that the public is split on the right answer, though equally vehement on both sides, that strikes me as precisely the sort of situation in which an amendment would be inappropriate and we need to stick to the earlier rules until a sufficient consensus builds for a new rule.

Third, I am perfectly willing to acknowledge that a jurist's policy preferences might influence which canons of construction he or she chooses to endorse and hence to that extent it is relevant. But I think that most canons of construction tend to be very context-specific in terms of whether they will indeed promote or retard a particular policy bent, and hence the influence of policy preferences on canon selection is limited at best. A pro-liberty canon that curtails government power might be pro or anti "rights" depending on what a given piece of legislation says. Where the political branches are creating new rights such as in the civil rights context, such a cannon will work to the detriment of the folks being given new rights and to the benefit of folks being subject to new obligations. Where the law is restricting rights or expanding government intrusion into individual lives, the consequences will be the opposite. While a jurist might try to mak a list of how many prospective results would be favorable or disfavorable to his or her individual policy preferences, that exercise is fraught with uncertainty and not likely to give a policy-concerned jurist much to go on.

Again, my primary criteria is that the canon be applied consistently regardless of substantive area or result. If a jurist applies the canon only when the result is favorable and ignores it other times, then that jurist abandons the judicial role and is rightly subject to criticism. But I think Judge Roberts has made a strong case that he will be ever-vigilant in seeking equal application of the law, outcomes be damned. Folks may not believe him, but he seems credible to me, and I think his answers are a full and complete response to the attempts to probe his policy preferences. (I also disagree with commentators who say that Scalia and Thomas only use their judicial approaches as a mask for policy choice. There are plenty of good examples of them voting contrary to their presumed and sometimes expressed policy preferences. The notion that those are only in areas not important to them is palpably wrong, and I have not seen persuasive examples condemning their consistency in cases where their reults were presumably more to their liking.)

To the extent a jurist does not take the approach I endorse, but instead favors a living or evolving Constitution and the abstract search for new rights (or new powers for the government), then I agree that policy preferences are more likely to influence that jurist's results and hence an inquiry into those preferences is reasonable and likely necessary. And because so many Justices in modern times have taken that approach, Prof. Cross's statistical evidence of ideological bias is hardly surprising, but somewhat misses the point.

If you believe Judge Roberts regarding his jurisprudential approach, further questioning of his policy views is of little or no benefit. Saying that others in the past have used their policy preferences to skew their judicial results is hardly a basis for demanding that Judge Roberts, who professes a different judicial philosophy, answer questions better directed at those others. And I think such questions, by politicizing the role of a Justice and by effectively endorsing such a policy-driven approach, are very destructive. Indeed, it is the invitation to politicizing the decisions of the Court that stands as an indictment of the more open-ended jurisprudences of some justices and argues in favor of a more constrained jurisprudence such as I have described.

If you do not believe Judge Roberts regarding his judicial philosophy, then I suppose that is reason enough to vote against him. But I am not willing to impute such dishonesty to him, and I do not think it reasonable for others to do so.