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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