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With judges wielding such concentrated and individualized power over cases, courtrooms quickly become stages for bizarre legal farces. Lawyers make arguments they don’t believe, that the judges know the lawyers don’t believe, but everyone has to play along. Only the judge has the power to decide when the game will end, and how.
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We’ve made a policy shift over the years that strongly favors “predictability,” in place of “justice,” as the chief virtue of the legal system. It’s a well-accepted principle of the judicial craft that the important thing is to have a rule, rather than to necessarily have the right rule... We’d much rather have all “similar” cases or issues get decided the same way, instead of different ways, even if this leads to worse practical, real-world results overall for more individual people. Under this system, say, it’s much better if all U.S. agents who kill people from inside U.S. territory are deemed categorically ineligible to be sued, because this is predictable, and predictability is fair. To have a situation where some border guards are sueable and others aren’t, by contrast, is unfair.
But this binary between “impartial” and “partisan” judges is actually pretty nonsensical. First, evidence suggests that judges are not capable of being impartial at all. Factors as insidious as racial and class bias, as reasonable as background and knowledge, as mundane as when the judge last ate a meal, and as calculated as the judge’s ambitions for career advancement or political office, all clearly influence their choices.
For Scalia, the supposedly neutral “servant of the law,” the interpretation that best aligned with his socially conservative views almost always turned out to have been the “ordinary meaning of the plain language” all along! Funny how that happens! (This sometimes required Scalia to be pretty creative about what constituted “ordinary meaning”—when he didn’t like the “a well-regulated militia, being necessary to the security of a free state” part of the Second Amendment, for example, he simply declared that it was a purely decorative “prefatory clause,” and when he didn’t like the fact the “plain meaning” intended by the Second Amendment’s drafters could not possibly have anticipated the semiautomatic handgun, he adopted a belief in a kind of evolving Constitution. And for someone who professed to dislike the idea of unaccountable judges thwarting the popular will, he certainly had no qualms about invalidating campaign finance reform legislation passed by the democratically-elected legislature.)
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The law is full of attempts to determine what “reasonable” behavior would be in a particular situation. It should shock no one (except lawyers) that people often have wildly divergent views of what “reasonableness” means in any given situation. For courts, the “reasonable person” standard has a disturbing tendency to align with whatever best suits the positions of those in power. Think of all of the police officers whose shootings of unarmed black people have been deemed “reasonable”—and then say you want a judicial system run by “reasonable” or “impartial” judges.
Even where judicial discretion isn’t explicitly authored into the system, there are vast areas of law where a judge has the choice between several equally plausible legal arguments, each leading to different outcomes. This, in effect, empowers the judge to make whatever decision they want. This view of the judicial decision-making process was expounded by Richard Posner, one of the U.S.’s most well-known jurists, in an interview with The New York Times after his sudden retirement in September 2017. In Posner’s estimation, it’s rarely difficult for judges to do as they wish: his own modus operandi was to decide what a “sensible” resolution of the case would be, and then look to see if there was any precedent that explicitly barred him from implementing his preferred solution. “And the answer is that’s actually rarely the case… When you have a Supreme Court case or something similar, they’re often extremely easy to get around."
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This is the other problem that arises when you champion open judicial “activism”—you tend to over-emphasize the extent to which judicial rulings actually result in social change... But it’s a very clean, simplistic view of history that thinks “well, at one point there was segregation, and then there was Brown v. Board of Education, and suddenly there wasn’t.” In fact, this isn’t true at all... In post-Civil War America, segregation fluctuated and was fought against over decades of social movements. In Louisiana, for example—a few years before the infamous 1896 Plessy v. Ferguson decision which legally justified segregation—ox-carts were desegregated after a campaign of sustained protest and sit-ins. Social change doesn’t happen in the courts: courts just eventually catch up to what’s been happening on the ground. If we instead depend on activist judges or lawyers, then social change will never come, and if it does, it will likely not be sustained... The [SCOTUS] denied review of the case [Baker vs. Nelson 1971, on gay marriage rights], stating that there was no Constitutional issue to review. Fast forward to 2015, when Supreme Court struck down a gay marriage ban in Obergefell v. Hodges. What happened in the intervening forty years to make this possible? The Constitution didn’t change regarding these rights. The legal arguments didn’t change either: if you read the briefs from both parties, the arguments advanced in 1971 and 2015 were pretty interchangeable. And the court in 2015 was more conservative, so the deciding factor wasn’t some new critical mass of “activist” liberal judges. The only thing that explains this landmark shift is that, over the past four decades, both mainstream and radical LGBT rights movements had taken to the streets and created a cultural shift. Obergefell is due much more to the activities of ACT-UP and the post-Stonewall gay rights movement than to Anthony Kennedy suddenly being a pro-gay rights “activist judge.
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As with most checks and balances, the judiciary’s ability to thwart the other branches of government isn’t so much a reliable safeguard against tyranny as a wild-card element that occasionally works out in our favor. More broadly, the temptation to view judges as potential saviors often seems to sap progressive will for reform efforts through electoral and legislative channels. We currently have a legislature that is chronically unresponsive to genuine public concerns, and an ongoing concentration of de facto governing power in the president and his executive agencies. In this context, it’s understandable that people want to think of the judiciary as the last, best hope of American democracy. But even an optimally moral and courageous judiciary can usually only engage in obstructionist tactics, which a sufficiently determined executive will then maneuver around, unless the public finds some other way to make this politically inexpedient. The danger of reposing too much power in the judiciary, too, is amply illustrated by the Supreme Court’s Citizens United decision, where the Supreme Court declared unconstitutional the exact kinds of reforms that would have made the legislature more beholden to the real interests of the majority of their constituents—and which would thus have reduced the importance of the judicial deus ex machina. If we aspire to a form of democracy where there is an actual connection between the organizing efforts of the general public and the subsequent behavior of our elected officials, pushing for reforms to make our elected government more responsive to popular concerns is a better route than relying on distant elites to undo the mistakes of other elites. When you put power in the hands of unaccountable elites, you never know what they will do with it.
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[W]hat kind of power should judges have to decide the fate of the ordinary people, most of them poor, who come before them with criminal, domestic, housing, and immigration issues? Lower court judges—as opposed to appellate judges, who are often dealing with weird standards of review—have considerable discretion to reach whatever decision they wish to reach... But if you have a judge who fundamentally does not care about the person in front of her, or grossly misunderstands the actual circumstances of their life, this broad discretionary leeway will be, at best, useless. At worst, it will empower the judge to make a unusually bad and biased ruling.
Part of the problem, of course, is that judges are separated from poor litigants by class and, often, race. If we want more judges to exercise discretion in an empathetic direction, it seems crucial to diversify the pool of judges... Since there’s no good way to actually measure judicial “empathy,” you run the risk of simply adding a diversity gloss to a fundamentally unjust system.