A few days ago I was asked which of the Justices on the US Supreme Court I admire the most. My answer shocked the friend who asked the question: Justice Antonin Scalia and Justice Stephen Breyer. His reaction was almost immediate. "How can you admire two justices who are so different (i.e., conservative and liberal respectively, though the use of the political terms is somewhat inaccurate)??? I would like to take a moment today and explain why I feel we (the general public) have a tendency to look at the wrong aspects when evaluating our judges.
For decades Judges, especially Supreme Court Justices, have been labeled either liberal or conservative, judicial activists or practitioners of judicial restraint, strict constructionists or living constitutionalists…. The list goes on and on. Oddly enough, none of these terms are accurate in terms of what judges actually do, or rather, the processes by which they do their work. As a result, there is a very skewed perception of what is being done by the courts (see my blog on judicial review posted in February of this year).
Judges have the responsibility of not only coming to a resolution of the questions before them, but also having a methodology in place to be able to answer those questions. Hence the sometimes lengthy opinions explaining their reasoning. There needs to be in place rules of interpretation in order that there can be some consistency and predictability in the law, though that does not mean that every judge will have the same answers as the rest on the same questions. The public in choosing to focus on the results in cases thus misses the most important aspect of what a judge does, and that is deciding how to decide.
The question of deciding how to decide is one that has always fascinated me, and has allowed me to appreciate and admire Justices Scalia and Breyer above the rest (though to be fair the current nine member Supreme Court is the most intellectually competent one as a whole that I have ever known or studied). Both of these Justices have written about how they go about their jobs. Scalia's main books on the subject are A Matter of Interpretation, and Reading Law: Interpreting Legal Texts. Breyer's books on the subject, though a bit broader in treatment, are Active Liberty: Interpreting Our Democratic Constitution, and Making Our Democracy Work: A Judges View. Both Justices have attended gatherings together in which they speak and offer their opinions on how to best interpret law (each having some similarities and also some glaring differences).
For some time now we have seen politicians arguing over judges who will “interpret” the law rather than “make” the law. I doubt that there is anyone, generally, who would dispute the proposition. The problem is, in the currently fierce political climate, that no one wants to answer the question of HOW do we “interpret” the law. It is that very question that has created a very divisive political atmosphere surrounding the appointment and work of judges, and yet it is also the very question that should remove the politics from the discussion.
How many would understand the nuances of standing? Or would many know the contours of the phrase “the freedom of speech”? Is the right to privacy in the Constitution? What level of protection, and to what extent, does the Ninth Amendment give to unenumerated rights, and how does one go about determining whether a right fits within the ambit of that protection? How do we effectively give teeth to the search and seizure clause of the Fourth Amendment?
The above were just a few fundamental questions that may arise in the courts, and those are only the tip of the iceberg. The Constitution gives no clear guidance on any of those, thus the judges must come up with analytical frameworks to resolve those questions, and many others. It becomes immediately apparent that a judges job isn’t simply answering the questions posed by the litigants, but also, and most importantly, coming up with HOW to answer those questions.
There are a number of analytical propositions that judges have to choose from in order to effectively interpret the Constitution, statutes, and regulations that come before them. Each of the propositions have some merit, but also some demerits. Justice Scalia has said repeatedly that his method doesn’t have to be perfect, only that it be better than whatever else is on offer. He likened it to two hunters in their tent being disturbed and finding an angry bear in their camp. They begin running away from the bear, one of them ahead of the other. The slower one says that they’ll never outrun the bear, who is gaining on them. The one in the lead yells back that he himself doesn’t have to outrun the bear, only his hunting partner who is falling behind.
I will be honest and say that I have never settled on one specific theory for interpreting laws. I see definite weaknesses in all of them. All of them have some strengths that are deserving of serious consideration. Ironically enough on the Supreme Court they have unanimity nearly half the time, or close to it. It is where the cases are genuinely controversial that we have some tension in the competing philosophies. At that point, the vitriol about whether judges are good ones or bad ones ramps up to its highest fervor. And yet, it isn’t the process of how a decision is made, but rather the end result that is bludgeoned.
How should we evaluate judges? I feel very strongly that we need to look at the process, and not the results. Results are important, but only insofar as to see what needs to be changed in the law, or possibly attempting a Constitutional Amendment (though that process is far too cumbersome and layered to be of serious consideration on most issues). I mentioned above that I admire both Scalia and Breyer. If I was to look at the results, I would say only Breyer, and I would be looking seriously askance at the work product of Scalia. But because I look at the process to evaluate judges, I can appreciate and respect both of them. I agree on the end results more often with Breyer, but both Scalia and Breyer have well defined, if different, methods of interpreting the legal texts before them, and as a result I can respect their work and efforts. I hope that all of us may at some point develop a greater understanding of process over results, which would give us a more honest debate over our legal system, and what can be done to improve it, if anything needs improved. From my perspective it isn’t the judges, but the lack of understanding of what judges do that is the real problem and what interjects the vicious political infighting into our discussions on the courts.