Ignatz is annoyed:
Aargh! Here’s another guy talking about jurisprudence and nominees, who needs to be reminded: DUDE! Your preferences are preferences, your beliefs are beliefs, and they are NOT truths! You want judicial rulings that favor the interests with which you align yourself. Say it, admit it, be it: you want those things, and you want the confirmation of judges whom you expect to do those things. That is your preference, not an insight into what the law “is” in some objective sense that liberals are too blinded to recognize.
The article that annoys him says, in part,
Conservative reaction, slow to come, took two forms. Initially, conservatives railed generally against “activists” on the bench, demanding that they defer to the political branches. In time, however, the limits of that view became clear… Recognizing that, a second, more sophisticated response emerged, spurred on by libertarians, one that urged judges to be active in discerning the true law and applying it to cases before them. On that view, judges had no business deferring to the political branches the Constitution hardly instituted a pure democracy, after all. Rather, their job was to discern the “first principles” of the matter… The virtue of the emerging constitutional jurisprudence of the Right is that it is … returning to the “first principles” of the matter to show, at bottom, the respective domains of law and politics. Judges who actively recognize and enforce those principles are not engaged in judicial activism. They are doing what they are sworn to do by their oath of office.
There is a deep issue here, which I’ll try to put my finger on. I’m painfully aware I am neither a sociologist of law nor any kind of expert in constitutional jurisprudence, so bear that in mind. But this is just my blog, for God’s sake, so what the hell.
Ignatz (aka Sam Heldman) is right to argue that constitutional law is a fundamentally political enterprise. People have a strong political interest in seeing Supreme Court decisions go one way or the other, and to pretend otherwise is disingenuous. Roger Pilon (the author of the second quote) wants to make a distinction between “activist” and “active” judges. It’s an untenable distinction: Pilon is just saying the former are bad, because they falsely read their political beliefs into the constitution, but the latter are good because—- what a conincidence—- they truthfully read his political beliefs out of the constitution. Heldman is right to say “Aargh!”
In another sense, however, Pilon is onto something (though not what he thinks). The most important thing about the Supreme Court’s decisions is that they be accepted as legitimate. For this to happen, their rulings cannot be handed down simply as expressions of political preference. From the point of view of its staff, the machinery of legal reasoning and procedure cannot simply be a ritual means of effecting political goals. Art Stinchcombe puts it better than I could:
Thus it is only because we imagine that justice will be served that we set up the whole apparatus of appealsof judges guessing what each other will sayto demand that they obey the legitimizing formal procedures … In short, the acceptance of the idea that the appellate court was a ritual would destroy its legitimacy.
[W]hy is it that intermediate appellate courts take producing opinions with those ritual marks so seriously, as opposed to saying they guess the Supreme Court might decide yes (or no) and leaving it at that? … In short, why is formality never enough for legitimacy, without some conviction that the formality is just a more abstract form of the substance? …
I believe we have recently underestimated the degree to which people accept institutions because they think the institutions have the right answer, because institutions embody a value that the people also accept. (”On the Virtues of the Old Institutionalism”, Annual Review of Sociology 1997, 1-18.)
Stinchcombe is making a subtle point. He’s not saying that judges discern the “true law”, a la Pilon, but rather that the law could not work as an institution if its staff were not committed to a substantive value of justice. If they accepted that they were implementing a political agenda, then the ritual trappings of the law—- all those footnotes and precedents, all those robes and gavels—- wouldn’t mean anything. This doesn’t mean they aren’t also doing politics, but it does mean they can’t see themselves in that light and keep their legitimacy at the same time.
Where does this leave us? Sam Heldman is right that law is politics, but such a view could never be the law’s theory of itself. I think I’ve seen this problem show up in my very limited reading around in pop jurisprudence. A lot of this stuff wants to develop some theory of what the constitution is and how it should be interpreted, and do so in a manner that judges could use—- i.e., in a manner committed to some principle of substantive justice. At the same time, the author will have a particular legislative program in mind, a set of decisions he or she wants the court to make. The goal is to jerry-rig the jurisprudence so that it legitimates the policy agenda. The problem is that this goal cannot be admitted, for then the project would lose its claim to legitimacy and thus no longer be workable.
Some writers grasp the nettle. Duncan Kennedy heads towards a sociology of law that, whatever its merits, could never be the official value system of the people who staff legal institutions. Richard Posner tries to subordinate law to his own image of applied social science, perhaps with greater success. Cass Sunstein (and his originalist opposite numbers) are caught in the middle. But I’m in pretty unfamiliar territory here, so this is just speculative.
My intuition is that the best (most empirically plausible) theory of the law as an institution will not be one that the staff of that institution could ever rely on, because it would take the law’s legitimacy as something to be explained rather than established.
I have a feeling I just rediscovered a basic point appearing about 20 minutes into the second lecture of a 200-level Soc of Law course. But never mind.