Monday, April 26, 2010

The Letter of the Law

I was reading this article in The New York Times today about the qualities that President Obama is looking for in a Supreme Court nominee. The focus of the article is on “empathy” and whether it is appropriate for presidents to seek this quality or not. The gist of the concern critics have about “empathy” is that justices should not let their personal biases influence their decisions. “Empathetic” justices, critics maintain, might end up “twisting decisions to reach a desired outcome rather than the one mandated by the letter of the law.”

We are so steeped in myths about the Court that even the Times is suggesting that adherence to “the letter of the law” is a reasonable quality to seek in a Supreme Court nominee. But the idea that case outcomes are “mandated” at the Supreme Court level—or that they can be—is not something that political scientists take very seriously.

This is not to say that Supreme Court justices do not care about legal values, like maintaining consistency in the law or making good legal policy. Certainly justices can exhibit a respect for precedent and make law that harmonizes with the holdings of previous decisions.

The myth is in assuming that the “rule of law” mandates particular case outcomes, at least at the Supreme Court level. At the lower court level, this might be so, but the majority of cases that Supreme Court justices decide have already divided the lower courts. There are rarely “right” answers to these legal questions because the cases present genuine legal uncertainties. In the end, a justice must make a choice.

Instead of worrying about whether justices will maintain the “letter of the law,” we should be asking whether nominees to the Supreme Court will make decisions that reflect our values. Every justice will make choices that have profound policy implications. Now is our opportunity to influence the choices that our justices, inevitably, must make.


Arthur S. Hayes said...

The NY Times says," [Obama’s] critic call that a prescription for twisting decisions to reach a desired outcome rather than the one mandated by the letter of the law." Such criticism is nothing but a canard, and an apparently effective way for certain factions to frame the debate. You are correct to point out that this “letter of the law” standard is a myth.

First, there has been for some time in British and U.S. common law the concept of equity that judges do not have to adhere to the letter of the law when to do so would render an overly harsh result. Equity allows judges “to mitigate” the rigor of common law.

Secondly, the U.S. Supreme Court judges do not function like umpires despite what Chief Justice Roberts would have us believe: “Judges are like umpires,” Judge Roberts declared in the opening remarks to his own confirmation hearings. “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”

Rather judges are like the baseball commissioner; they interpret the rules. They can throw out old rules and put new ones in place. See though he is not the first to use the justices like baseball commissioner analogy:
“The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball."

Having said that, I am not sure what our values are. Please identify such values that are shared by the left, right and middle.

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