I'm brought to this by the percolating discussions surrounding the imminent retirement of Supreme Court Justice David Souter. What is the role of a judge? What are the tensions between the law and justice?
Charles Grassley, a Republican Senator from Iowa, has said recently that he hopes Pres. Obama nominates someone who treats the law in the manner of the iconic representation of Justice--blind. In a similar vein, Justice Roberts, during his confirmation hearing, spun the analogy of umpiring a baseball game, simply calling balls and strikes.
Now, notwithstanding the obvious blindness of umpires, I think this is a problematic issue. As I take it, a judge's role is not simply to interpret the law, it's to also decide whether a law is just; and in the US, justice is determined by the extent to which a given law coincides with the Constitution. Of course, there is an interpretive act in that as well, but Justice is said to be blind not simply because she feigns to not see the individual complainants in a case, but also because she weighs the scales of Justice, determining what is fair.
The fairness doctrine, supposedly, is what is at the base of Justice Antonin Scalia's call for a "strict constructionist" approach to jurisprudence: the Constitution is an unchanging bedrock of our society and we should interpret laws only based upon its original intent.
That, of course, is complete shit and makes the same error as certain "fundamentalist" interpretations of religious scripture. The time-warp necessary for such a view not only denies the prospect of human and social evolution, but also introduces the insanity of trying to decode meanings and intentionality that are both shrouded in time and subject to their own historical exigencies. Slavery, case in point, for both religion and the law.
The so-called "activist" judges derided by the right are said to make the error overthrowing foundational principles, as in the case of gay marriage. But this appeal foundations or fundamentals misses the more subtle call to justice: simply because something has been with us, does not make it just. Were that the case, only men would have the vote, and only white men would own property. This indeed was the intent of the Founders, but Justice has found it in her weighing to find these principles plainly unjust. Maybe it's because she is a woman.
So, when President Obama suggests he is looking for a justice with "real world" experience, the opposition suggests that instead he need find an individual who will be blind to political persuasion and exist only within the ethereal realm of the "law."
I do not want my umpires blind, nor do I want justices so blinkered by arcane law as to miss the call to justice. She is blind to bias, not to right and wrong.
You're slightly off base - most judges do NOT get to decide whether or not a law is unconstitutional. Or don't have the ultimate decision on that. Most judges may decide whether or not, e.g., a search is unconstitutional, but in terms of a law, that is something that the Supreme Court does (massive overstatement, there is much nuance on the way to the SC - but this is comments not my own blog!). Then again, we're talking Supreme Court here, which is a fairly narrow field of cases it hears.
ReplyDeleteAdditionally, judges NEVER decide whether or not a law is fair. They may apply the law in a fair manner, but not decide whether the law is fair. They may decide the law is unconstitutional. Unconstitutional and fair are entirely separate concepts. But it is nice to have people who don't have massive political agendas, as the issues put in front of them will in fact be political and it gets difficult.
Yes, Anne, of course, MOST judges don't get to make these sorts of decisions--but SCOTUS. does. That's my question: in the supreme court of our land, what's the role of a justice--to interpret law or to decide what is fair?
ReplyDeleteMe? I want a justice bent on fairness. If the Supremes (not Diane Ross) decide a law is legal but unfair, they can punt it back to legislators. Or, as with gay marriage, write a new law.
I think that's right and good, and I want a justice who cares about fairness. I asked the question not to wonder about the role of ordinary judges, but to wonder about the Supremes. For them, I want fairness above all else--otherwise, what's the point?
But again, even SCOTUS doesn't get to decide what is fair. Never have, never will. They get to decide whether something is constitutional or unconstitutional and why. They can rule that it is unconstutional, for example, to permit or not permit gay marriage (most likely on the commerce clause, would be my bet), but fairness doesn't get a look in. And SCOTUS doesn't write a new law - if they declare a law unconstitutional, it still gets punted back to the legislature to write one that is constitutional. It might still be grossly unfair, but be constitutional. That's one reason why the Constitution can be changed, although it is tough to do so.
ReplyDeleteTurning up in court and saying "this law is unfair" will get you laughed right out of it (or to use correct terminology "dismissed with prejudice.") That's because fair is a totally nebulous construct that pretty much entirely depends on where you're sitting. If dem dere gayz are flawed perverted sinners (not to mention mentally ill - the diagnosis until recent memory) who are out to corrupt our sinners, it is fair to deny them the right to marry. If on the other hand, you're in a committed gay relationship and want the same rights and privileges and options as your straight friends to marry for love, not convenience or parental mandate since it isn't the 1700s any more, then it is unfair that you can't do so. So fair is entirely in where you're sitting.
For a good read and a great introduction as to how the Supreme Court works (and how cases get there), start with Gideon's Trumpet, which is about the case Gideon v Wainwright. It might answer a lot of your questions.
Anne, again, thanks; but again, my issue isn't so much "what is the role of the Supremes" (adjudicating if laws are constitutional), but rather what sort of justices do we want on the bench?
ReplyDeleteIt's a question of *how* they interpret: with a literalist reading of the constitution? As strict constructionists? Through appeals to the laws of other nations? With stare decisis as an overriding principle? Or, as I'm hoping, with a mind toward creating a more perfect, more fair union?
I understand how the court works, as it were, but I'm wondering about judicial temperament--some on the right want someone "blind like justice," but I'm wondering about what sort of blindness is or is not proper for a justice.
I would submit that while being blind to personal bias is a good thing, being blind to the effect of any given decision is not.
Two final thoughts: while I may be laughed at and "dismissed with prejudice," what do we make of Nino Scalia going hunting with former-VP Cheney, and then ruling some months later on a case involving Cheney? Was there not prejudice in that? And why did Scalia get to decide that for himself? Second, while SCOTUS certainly doesn't write laws, they do indeed make them: Brown, Roe, Gitmo (that could be a song). Again, I know they didn't write laws in any of these cases, but the effect was to create law. Thus, do we not want a justice who is aware to the cause and effect of sitting in judgment and not simply "blind"?
But on to other things . . .