How unfortunate that my first post here should be a reaction. Co-contributors have requested that I exhibit decorum, and forgo the string of profanities that characterized (distinguished!) my earlier on-line missives. The limitation has drastically reduced my creative output. Sea legs are forthcoming. In any event, my colleague has spurred me to write by invoking my least favorite judicial fallacy—that of the umpire.
I will toe profanity's onomatopoetic edge by calling the myth of the Supreme Court umpire "transparently asinine."
My colleague is, of course, a wise man, who has said nothing incorrect. He merely seems not to share my terrific outrage every time a would-be Justice suggests to a Senate committee that we would save time and anguish by replacing him with a computer, so irrelevant is his own personal (or, perish the thought, political!) judgment to the hard mechanics of sussing out judicial truth.
Below, Vern posits that most law is simple. I agree with the fundamental premise. To paraphrase a professor of mine, perhaps indeterminacy is overrated. I once worked in a Senate office when a decision came down, the implications of which we rather disliked. But the decision was unanimous, and if you've ever read Chevron, it's not hard to see why. The agency was legally entitled to its interpretation. It was, as they say, within the strike zone. Delightful.
But when we ask Nominee Roberts about the role of judges, we could not possibly care less about this kind of case. We take those decisions for granted. No, we want to know about the dark art of Constitutional interpretation. To expand on the baseball metaphor, Constitutional law is baseball in which the umpire and the pitcher cannot see one another and may not even think they are playing the same game.
The now-standard response for judicial nominees—that the purpose of judges is to call balls and strikes—is, at best, coy and, at worst, intellectually dishonest. The former is a judge sidestepping the fact that we want to know how he or she will decide the hard cases. The latter is a judge somehow believing that there are none.
Consider the Court's recent Eighth Amendment work, especially Roper and, more recently, Baze: You could spend your life staring at the text of the Eighth Amendment and the common law it has sprouted, but you're still left with the words "cruel and unusual punishment." As some have suggested elsewhere on this page, if you can locate the shoulder- and belt-heights of that phrase, you're underthinking.
Do we examine the standards at the time of codification? (This goes to Vern's earlier thought-experiment and the limits of textualism.) Current understandings and standards? Personal standards? Local standards? National? Global? I have my answers, but I do not delude myself that they are rooted in anything other than my own politics.
I don't think the Chief Justice does either, except during confirmation hearings.
Is the vast majority of the law completely determinate? Absolutely. But when we ask your judicial philosophy, we're not curious to know what reasoning you'd apply when signing a unanimous decision, or whether you agree that speed limits present bright-line legal distinctions. We want to know how you'll interpret Constitution when you can see neither pitcher, nor ball, nor batter.
It's time to retire the "umpire" charade for high-level judges. Tell us about your first principles, your politics, your reactions to other hard cases. It's crucial to know what happens when the ball hits a pigeon because, in the world of Constitution, it's pigeons all the way down.
Any Justice who tries tells you that he or she could be replaced with a machine should well be replaced. And not with a machine.
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5 comments:
Jeff responds to my post with his typical ready wit, and of course some very good points. If we disagree, it's largely because I focus on different areas of the law. I focus on the majority of the law (the parts most people agree on), and he focuses on the minority (the parts we disagree on, and thus care more about).
Were I not writing a paper at the moment, I would respond in more detail. For now, however, I merely observe that the nature of indeterminacy is somewhat fractal. When we're asking a judge about his methods, we only care about the hard cases, so that's the picture we look at. And the range of those "hard" cases will remain what we care about, no matter how much of the law is actually determinate. This is kind of goofy. We end up, I think, focusing way too much on the tiny part of the law that's impossible to determine, and ignoring the rest.
There's a lot more to care about than this tiny area of the law. And we rarely seem to focus on that in confirmation hearings. Bork was a brilliant jurist, if an opinionated one, but we shot him down because of his theories on very small areas of the law. Meanwhile, we question people based on their credentials and experience only when they're obviously completely inadequate. I'd rather have either a Scalia OR Warren than a Miers, or any of the Miers-esque people sitting on the federal bench.
Isn't it more important that a judge get the answer right 99% of the time than that he gets it "wrong" that 1%? To remain with the baseball metaphor, it's as if we picked umpires based on their theory of the strike zone and not on the quality of their vision.
As for constitutional interpretation: even here, it's easy to exaggerate how much of the constitution is indeterminate. A lot of it is procedural. A lot of the rest is pretty clear. It's just, as Jeff says, that we only care about the bits we disagree on. But it's well to remember that if we didn't agree on the rest, it would be a much bigger deal.
Do we examine the standards at the time of codification? (This goes to Vern's earlier thought-experiment and the limits of textualism.) Current understandings and standards? Personal standards? Local standards? National? Global? I have my answers, but I do not delude myself that they are rooted in anything other than my own politics.
I could not agree more with this passage. These are my exact sentiments re: our "evolving standards of decency", as I explained ad nauseum in an earlier post.
In theory, I would like to agree with Vern that most of the law is determinate and fairly easily decided. But in practice, I just don't believe it's so, and I also suspect that the majority agreement / minority disagreement distinction is fundamentally inaccurate.
A few thoughts, breaking down cases into several scenarios:
First, we have cases where both the law and the proof are absolutely, positively clear. These cases tend, well, not to become "cases" at all. A lawyer who brings truly frivolous cases to court is subject to sanctions, and is unlikely to get rehired by the angry client. In the criminal context, the best plan is usually to plea for mercy at sentencing, though a client can, of course, assert their rights to a trial. In that limited scenario, balls and strikes are indeed called -- but at a trial level only. The Supreme Court need not, and will not, get involved.
Second, we have cases where the law is clear, but the evidence is less than ideal, from the plaintiff/prosecutor's point of view. This category includes most criminal cases, many tort cases, many property cases, and at least some contracts. Criminal cases in this category are overwhelmingly settled by plea bargain. Civil cases are almost always settled by negotiated agreements, with the exception of some contingency-fee cases (even there, the lawyer is likely to settle) and those cases where the plaintiff cares more about making a point than about the actual money (and few plaintiffs truly can't be mollified if the offer goes high enough). These cases, too, never become full "cases" in front of a judge/jury.
Third, we have cases where the law is clear and the plaintiff/prosecutor's evidence is clear, but there is also a substantial amount of evidence providing an affirmative defense. Some of these cases do get litigated, but again, most are simply settled. The only difference is that, in this category of cases, the advantage at the settlement table is (slightly) to the defendant.
Fourth, we have cases where the evidence is clear and undisputed, but the law is unclear. These are the 5-4 decisions, and they are 5-4 for the simple reason that reasonable minds can come to vastly different conclusions about "the law." Indeterminacy rules. These are all hard cases.
Fifth, we have cases where authorities (often circuits) have split. In these cases, even if the Supreme Court rules 9-0, we are faced with an odd mental mess. We can either believe (1) that the Court's ruling of 9-0 means that the law was supremely clear, which requires us also to believe that the judges on the Circuit or State Supreme Court below are obviously numskulls who wouldn't know the law if it smacked them in the face; OR (2) that the Court picked the answer it did for some reason that was not blindingly obvious, but necessary under a political rationale. Enter all the old CLS critiques of canons, law-as-politics, yadda yadda yadda. All cases in this category are hard law, even when they are settled 9-0.
To summarize, while the majority of cases may indeed be legally clear, those cases almost never actually come before a fact-finder. By the time we get to the category of cases that do go to a fact-finder, we've eliminated all the easy cases that don't involve irrational actors. And, I suspect, the cases with irrational actors are all too often the cases in which the evidence is hopelessly muddled, calling the strikes is no easy task, and canons of indeterminacy come into play. Furthermore, those cases that do get litigated even when the answer is clear are unlikely to get litigated all the way up to the top -- there's simply no damn point, setting aside suspect/unethical negotiation tactics.
If cases are simple, then why does the Supreme Court of the land have to tell us what the answer is? It's not a matter of using fractal logic to reach a point where we can invoke the demons of indeterminacy; it's a matter of practical reality that all real cases that make it to the court are hard.
Brian, again, I'm not sure we disagree. I'm pretty tired, so I'll just point out the following things, which have little or no relation to each other.
1) Just because a matter of law is hard doesn't mean there isn't a right answer. A pitch can be difficult to call, but that doesn't mean that the strike zone doesn't exist. We just may not be clear where the ball was in relation to it. And yes, I'm sticking with the metaphor, because of my love of the game.
2) Defendants, technically speaking, cannot have the advantage at the settlement table unless they are making a counterclaim.
3) It is, indeed, possible for a appeals court judge to be a numbskull. I decline to name names.
4)Many matters of law are resolved without a full trial on the merits; in fact, decisions on points of law are frequently precursors to settlement, at least at the trial level.
Now, to respond to the general sentiment here:
Roberts never meant that being a supreme court judge was easy. He just meant that a judge is to view the constitution as controlling his decisions, rather than allowing his personal policy preferences to dictate them.
The critique of this last point, I suppose, is that any case that gets to the supreme court is so difficult that no neutral principles can apply--that it's all just policy preferences. This is balderdash. It is, moreover, a particularly insidious kind of balderdash, with troubling consequences and a ring of truth.
Maybe there are no neutral principles. But there are, at least, policy preferences that are of a higher order than others. And what Roberts is saying is, roughly, this: Democracy, legitimacy, and the rule of law are more important to him than his other policy preferences. So he will choose the methods of interpretation that appear to most consistently maximize those values. For him, that means following some sort of original meaning until a democratic supermajority makes a different decision. You might disagree that this approach maximizes those values, but if so, you are in the minority of the US population, which lends it at least some legitimacy.
Now. Is choosing that method of interpretation a policy choice? Yes, no question. He likes various abstract concepts (democracy, legitimacy) more than others (love of sandwiches), and he feels that his interpretive method best serves those policy values. Does that mean all judicial decisions are based on the individual moral preferences of the judge? Sure, sort of. But that doesn't mean Roberts is like a legislature, voting up or down based on his preferences on any particular issue. His dominant preferences are of a much higher order. They might not be "neutral principles," but they're a hell of a lot closer than those of, say, congress.
But that's a pretty complicated idea, so he decided to go with the baseball thing instead.
Vern: In theory I like what you're saying about Roberts, despite my own hatred of baseball and the baseball metaphor (go Yankees!).
But when you (as proxy for Roberts, who for some reason is not participating in this discussion) say the following, I'm bothered: "...what Roberts is saying is, roughly, this: Democracy, legitimacy, and the rule of law are more important to him than his other policy preferences. So he will choose the methods of interpretation that appear to most consistently maximize those values."
I'm bothered just a little bit by the substance -- which essentially replaces an amorphous crit heuristic with a formal "method of interpretation" -- but still more with the implication for other Justices.
It seems to me that every Justice, and most judges, believes that "democracy, legitimacy, and the rule of law" are more valuable than their other policy preferences. But Justices and judges still can and do come to wildly differing methods of interpretation while en route to those lofty and indefinable goals. No one who makes it to the Supreme Court can not valorize the Constitution -- but their own subconscious policy preferences have a lot to do with defining what they see as a mostly-consistent method of interpreting the Constitution.
I'm not even sure if I disapprove, or if I would prefer it to be otherwise. But what I do know is that either all Justices believe in the balls and strikes theory (in the sense that they all feel themselves bound to try to ferret out a solid and consistent method of interpretation) or none do (meaning that they all are bound subconsciously by the same kind of differences in policy preferences we all have). Believing otherwise requires inferring a great deal of bad faith on the part of the so-called liberal wing. Either way, the metaphor seems trite and irrelevant -- balderdashian, perhaps?
Miscellaneous thoughts:
It seems odd in general to think of the Roberts Court, in practice, as the balls-and-strikes court. If anything, this Court is the "dodge the question" Court, with its heavy emphasis on as-applied challenges. I'm still unsure about whether I approve of the as-applied / facial challenge distinction that this Court seems to love to draw (I think I approve), but it's still pretty weird when you think about it. Why accept the cases only to dismiss them for failure to be brought properly?
Postscript -- In your first four bullet points in the last comment, you raise some interesting thoughts. The only one I want to respond to specifically is #2, "Defendants, technically speaking, cannot have the advantage at the settlement table unless they are making a counterclaim." Clearly true. To clarify my own earlier ill-phrased point (lest anyone think I know nothing about ADR), I meant only that the defendant in this scenario is more likely to pay a nominal sum than an exorbitant one. I classify this in my own mind as a advantage/win.
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