The Hard Cases Are Hard
Ramesh Ponnuru takes issue with what I think is a fairly banal David Brooks point about how judges’ background and experience will probably alter their thinking about cases:
Without wishing to take issue with the abstract point Kahan is making—surely it’s true that different judges come to different conclusions because they assign different weights to the various facts involved—couldn’t a third judge “perceive” that the Constitution, properly interpreted, doesn’t actually empower him to balance, or say anything at all about, the schools’ concerns about security and the girl’s psychic needs? And wouldn’t Brooks’s observations about judicial psychology apply a lot less to a justice with that mental “model”?
I appreciate that the rhetoric of embattled conservative judges waging a lonely battle on behalf of “the law” against a cohort of subjectivists is politically useful, but I wonder if folks on the right really believe this stuff.
The whole essence of controversial appellate decisions is that the constitutional or statutory provisions at issue aren’t clear. The super-clear issues don’t get litigated at all. Congress isn’t going to pass a bill saying “Christianity is now the established religion of the United States.” But questions arise that people disagree about because legal standards are full of abstract terms. There are protections from “unreasonable” searches. Thanks to the existence of precedent, judges don’t start de novo asking individually weather or not any given search is reasonable. But new, difficult cases arise when circumstances arise that aren’t covered by the precedents in an unambiguous way. What “the Constitution” says is going to turn on how a judge balances the different considerations in play.
46 Responses to “The Hard Cases Are Hard”
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May 31st, 2009 at 8:31 am
Weather /= whether.
May 31st, 2009 at 8:35 am
Okay, firstly, “psychic needs”? That makes it sound like things they need for their clairvoyance to work.
Secondly, what exactly does Ponnoru’s counterexample mean? His judge who thinks this isn’t in the constitution thus decides, waht? That the school can do whatever the fuck it likes? As usual with conservatives, the “neutral” response appears to be to always side with those in power. Such a judge is not being “neutral” – he or she has decided that the school’s security needs should trump any consideration of the student’s rights (and that’s what this is about – the student’s constitutional rights, not her “psychic needs”).
I don’t even begin to understand this kind of ridiculous pretense to objectivity that conservatives have.
May 31st, 2009 at 9:06 am
“Emanations of penumbras”; QED.
May 31st, 2009 at 9:12 am
The Court derives judicial review from its claim to be interpreting the Constitution. If the Constitution is too hard to interpret in some case, that doesn’t give Justices license to go with the side that they prefer. Indeed, if the hard cases really arise because of the impossibility of interpretation, this is an argument for judicial restraint in these cases.
The unreasonable searches and seizures clause, unlike most clauses in the Constitution, does allow judges leeway, but I don’t see how empathy comes into play here. Obviously the judge understands why people don’t want to be searched and why the police want to search; the judge’s job is to decide whether the search itself is reasonable.
May 31st, 2009 at 9:13 am
It’s simple; philosophically accepting the point “we are all biased to our viewpoints” seems to many liberals as a way to completely unmoore their decisions from the text, which I believe any reasonable judicial philosophy should hold primary. It can’t just be, “OH AMBIGUITY WOO!”, so then this justification will lead them to bizarre ends justified by the notion that it’s all “subjective” and I can’t criticize your jurisprudence because of privilege or your ’superior’ life experiences.
It’s kind of akin to the naturalistic fallacy in evolutionary terms. You can say that for example, men tend to dangerous, physical jobs and women tend to nurturing jobs, an empirically quantifiable statement. Some people use that probabilistic statement to formulate their belief that only men should be able to perform those jobs in lieu of capable women, which is absolute nonsense. They believe those statements JUSTIFY their bigotry, which is coincidentally why the left similarly hates acknowledging group differences in many other forms, because they know it provides similar “ammunition” that does not benefit them in their political arguments.
May 31st, 2009 at 9:16 am
Also, MY, you never really respond to Ponnuru’s point about balancing tests. It is judge-created doctrines such as balancing tests and Separation of Church and State that bring a lot of the arbitrariness into things; this is not because the text itself invites arbitrariness.
Further, you don’t seem to acknowledge the possibility that judges will pursue their ordinary interpretive methods even when this requires hard mental work.
May 31st, 2009 at 9:20 am
When you distill all the bullshit from conservatives, it is not “activist” judges that they have a problem with. Rather it is that the active-ing should be for their pet causes (e.g., installing GOP presidents). Of course that does not stop folks like Ponnuru get dreamy about appointing detached zen-like judges who unmoved by any human emotion or feelings. In a conservative world, you could (or should) replace fallible human judges with programmed computers. After if the constitution and laws as clear as the conservatives claim they are, then what could be more objective than a silicon chip?
May 31st, 2009 at 9:24 am
It is also interesting that Sotomayor actually alluded to something quite un-PC in her now infamous speech:
“Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging…”
I believe her philosophy of judging is actually completely internally consistent. Rereading the essay very closely upped my respect for her intelligence. I also believe that it is inimical to the continued respect for the rule of law and the further perpetuation of that respect in our demographically fluid country, because law requires consensus and agreement, and especially in a nation of cultural diversity, an impartiality to ethnicity and race.
May 31st, 2009 at 9:26 am
Who says you can’t program emotions or feelings? The computer analogies are stupid, because one should be aware that you can analogize the universe’s operations to computing with atoms. Emotions are heuristic decision procedures to choose the correct action. They are as programmed in your brain in DNA as they could be in code.
May 31st, 2009 at 9:53 am
I’m not a lawyer or legal philosopher, but I think much of the talk of “empathy” and “interpreting the law” is backwards. The question is not what the law is, but how to apply the law to particular cases. That’s the hard work. Courts don’t change the law, they change how the law is applied.
In applying the law to any particular case, the facts of the case are crucial. Among the facts are the motivations and backgrounds of all individuals. In most court cases it is the role of juries to determine the facts. Juries hear things like live testimony so they can make personal judgements about the veracity of testimony, etc. They make personal, gut-level empathetic judgements about who is lying, who is telling the truth and who is stretching the truth. Clearly, if you can identify with a defendant, and understand the defendant’s background, you are in a better position to sort out truth from BS. Empathy does not mean you believe everything you hear. In fact, it could lead to increased skepticism. Someone who comes from a community can more readily tell the difference between a scam artist and a victim.
Judges may play supportive roles to juries or primary roles. But it is useful if they can discriminate the scammer from the truth-sayer. Facts from fiction.
This is why it is extremely important to have diversity throughout the judicial system. If all members of the legal system were from the white, suburban county club set, it would be extremely difficult to:
1) determine the dynamics of cases not set in the rich suburbs; and
2) interpret the law consistent with original intent in a way that applies to diverse circumstances.
#9 Donkey Benjamin is yapping and knows nothing about Neuroscience. To start with, DNA does not determine emotional reactions. From a reductionist Neuroscience perspective, emotional reactions are coded in synapses, which strengthen and weaken as function of experience.
May 31st, 2009 at 9:57 am
what do judges do? they JUDGE. Judges are supposed to use their best judgment in the case at hand. If it was a simple matter of just “applying the law” without any other extraneous influences, there would only need to be one supreme court justice. There are 9 precisely so different points of view and different interpretations (or Judgments) are thrashed and an opinion reached.
May 31st, 2009 at 9:57 am
NotALaywer, you’re a fucking idiot. Synapses are is a fucking juction, an empty space between which chemicals pass through to the axon and the dendrite. Jesus Christ, what open ignorance.
May 31st, 2009 at 9:57 am
Notalawyer; I am a lawyer and you have hit the nail on the head putting meat on the bones of what I was saying in my previous post.
May 31st, 2009 at 9:57 am
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .
Of COURSE something like this requires a balancing test. How could it not? The text recognizes a right of people to be secure in their persons, but also recognizes that this right isn’t absolute, meaning at least searches of people reasonably serve legitimate ends, and so a court enforcing this provision has no choice but to balance these two considerations.
And the reason empathy is relevant–indeed, OBVIOUSLY relevant–is that it is necessary to determine the magnitude of the harm caused by any particular search of a particular person. Maybe a robot or a person with an antisocial disorder couldn’t tell the difference in harm caused by a quick pat down versus a head to toe strip search, but human beings with empathy can. And understanding such distinctions is necessary to enforcing this part of the Constitution.
Generally, I understand that some people wish judges didn’t have any discretion in these cases, and I even understand (although do not always agree with) some of the arguments for such a position on theoretical grounds. But the problem with such a position is that the text of the Constitution DOES give Article III judges a great deal of discretion, so if these people don’t like it, they need to be pushing for all of the many Constitutional amendments we would need to strip judges of that discretion.
May 31st, 2009 at 10:05 am
Who says you can’t program emotions or feelings?
You may be able to create an artificial being which can understand emotions and feelings, but the most promising approaches are not algorithmic. Rather, the most promising approach is to give the artificial being the ability to model those emotions/feelings with some internal structure, an internal analog of the other person if you will, which would allow the being to receive from that internal analog the information necessary to understand those emotions/feelings. To summarize a complex topic, that is necessary because the external signs of people’s emotions/feelings, including what they say, tend to provide insufficient information for such an understanding, because emotions/feelings are subjective in nature.
Which is basically just an artificial form of empathy.
May 31st, 2009 at 10:06 am
Conservatives are cute when they really try and get people to believe that they honor the Constitution and that they don’t like ‘activist’ judging and that they believe in the rule of law. They’re also cute when they try and talk about science.
May 31st, 2009 at 10:18 am
DTM,
My point with the whole computerization thing was not to get technical, which you seem to have an understanding of. It was just to show that one could often get just as good results with a ‘programmed’ judge; imagine if you could coded modules or functions of say, key principles, within a larger program that ‘weighted’ their application differently, ran them against a test bed of cases, recorded the results the robot spit out, and then compared those results to what you thought the proper ones should be. If they differed, you and your diverse team changes the weighting of the different functions, with full consensus. This procedure could possibly lead to better law, because the fount of law would be explicit and open and observable to everyone, and could also be tweaked more finely than we manage to do in our rare cases of paradigm-shifting cases like Brown or something like that.
May 31st, 2009 at 10:19 am
El Cid,
Everyone says, shut the fuck up.
May 31st, 2009 at 10:22 am
ThatDonkeyBenjamin,
While I certainly don’t rule out the possibility of creating artificial beings that can be legal judges, part of my point is that I think they would end up resembling human beings in some relevant ways, including having an ability equivalent to empathy. Whether such beings would be an improvement on human judges nonetheless is an interesting question–I tend to think that is likely just a matter of time, but we certainly aren’t there yet.
May 31st, 2009 at 10:30 am
I agree with John that Ramesh seems to be arguing for deferral to power. Sometimes, this is the cops, sometimes the school, but most often, it’s the legislature. The funny thing is that have been several periods (the progressive era, the new deal, now) in which the courts have not deferred to the legislature and this has benefited conservatives. The current court is quite willing to overturn for many reasons. D.C. has some theory behind it’s gun ban. Will the court defer in Ricci? The interesting counter-factual is whether the country would be more or less conservative without judicial restraint. You’d lose the progressive decisions in the ’60’s and ’70’s, but leave the Johnson and Roosevelt(s) congress with much more power.
May 31st, 2009 at 10:31 am
Conservatives are cute when they really try and get people to believe that they honor the Constitution and that they don’t like ‘activist’ judging and that they believe in the rule of law.
At least certain “conservatives”, yes. What happens when you start pushing a Scalia-type on the actual language of the Constitution and what it seems to authorize when it comes to Article III judges is that they quickly switch into normative arguments, talking about the questionable legitimacy of unelected judges making crucial policy decisions and so forth. Which is a fine conversation to have, but that is no longer about the text of the Constitution.
Of course, if judges took the text of the Constitution perfectly seriously, meaning they used all the power the text grants to them, pretty much no one would be happy with the outcome. So, although not authorized by the text per se, almost everyone is fine with Article III judges voluntarily imposing restraints on the amount of power they will exercise. And again, exactly what restraints they should voluntarily impose on themselves is a worthwhile issue to discuss, but the thing people need to understand is that the text of the Constitution doesn’t answer those questions.
May 31st, 2009 at 10:32 am
Benjamin the Ass: Fuck off, nitwit. No one gives a shit about your leagues of imaginary friends who cheer on your nonsense.
May 31st, 2009 at 10:37 am
Ramesh Ponnuru is a shill. I am persistently amazed that so called “liberal” commentators treat him with respect. Yes, I get that he dresses nice. But give me one piece of logically sound reasoning to be found in any of his screeds.
May 31st, 2009 at 10:38 am
If judges backgrounds didn’t matter, why has the law changed over the last 200 years? Why has the supreme court reversed itself on major opinions after the judges changed?
May 31st, 2009 at 10:49 am
#12 the donkey benjamin,
I’m a bit embarrassed to reply to your screed.
1. synapses aren’t empty.
2. read any neuroscience text (Kandel, Jessel and Scwartz; Purves et al; Nolte; Bear) to find out more about synapses. They are highly modifiable. The plasticity of synapses is thought to underlie associative learning, including emotional learning. Eric Kandel got the Nobel prize for important work in this area.
May 31st, 2009 at 10:51 am
ThatDonkeyBenjamin,
I was going to gently note that your statement “Emotions are … programmed in your brain in DNA…” is (a) wrong, and (b) an extreme caricature of genetic reductionism that no one who has ever thought about these issues for more than five seconds believes.
But your (very emotional!) insistence that the function of the brain has nothing to do with strength of synapses makes your position unintentionally hilarious. Based on this thread, I would guess that NotALawyer has had at least a course in neuroscience, while your familiarity with the subject and terminology is limited to a couple minutes on Wikipedia.
May 31st, 2009 at 10:52 am
regardless of whether the constitution is ambiguous or not (and i’m just being nice here: of course it is, because of course words are ambiguous), laws are in many cases extremely ambiguous. so a supreme court judge must conduct two lines of inquiry: what the hell does the law actually say (which may be ambiguous, contradictory, or simply just plain unclear) and how does what the law actually says meet a constitutional test?
it is insane to believe that there is one clearcut answer to both of these questions as bush v. gore should have demonstrated even to ponnuru (i have no such hope for aaron or thatdonkeybenjamin and his fantasies).
May 31st, 2009 at 10:53 am
NotALawyer: No you are wrong. I read very clearly from a commenter on the intertoobz that emotions are a simple clearly understood phenomenon. This is why we can build judge robots.
May 31st, 2009 at 10:56 am
Oh, I didn’t see #25. Based on the names mentioned there, NotALawyer’s probably had more than one nerosci course
May 31st, 2009 at 11:13 am
The whole essence of controversial appellate decisions is that the constitutional or statutory provisions at issue aren’t clear. The super-clear issues don’t get litigated at all.
Riiiight.
All those super-clear cut cases like say…warrantless wiretapping, habeas corpus, torture…..
They are never litigated.
May 31st, 2009 at 11:17 am
Worromot, you actually stated very little of what you did know in your stupid post. I have the books Cognitive Neuroscience, Neuroanatomy through Clinical Cases & Evolutionary Psychology, Evolutionary Psychology, and some others in front of me. You can shut the fuck up.
I just Googled “coded in synapses” and got 4 responses in Google. I understand after some thinking some what NotALawyer meant in his explanation; synapses are depolarized and unpolarized due to the flow of ions, akin to the binary bits of 0 and 1, so they do “code” for something. He reiterated his stupid claims, stupid because synapses are in fact junctions, which I read him as implying that transcription occurred there or something. But precious few people actually talk of “programming” in code in strings of 0 and 1 as if we were talking about machine language and not a higher-level language with semantics. Many here are actively hostile to statistics or numbers at all, so I’d guess in the mold of morons he probably read this stuff in some pop-Gladwell book and is preaching back at me from his searches in Google Scholar. After all, two can play that game. In any case, he’s still wrong, because like many other mammals, babies come out of the womb able to smile, cry, and laugh, given those abilities solely by their DNA and not “experience”. It’s a dichotomy at most, and so I conclude that NotALaywer is still probably, a fucking moron.
May 31st, 2009 at 11:19 am
Please stop trolling me. Kindly shut the fuck up.
May 31st, 2009 at 11:52 am
What kind of diversity? Be more specific. Your post makes sense up till here. The kind of diversity you are talking about is very important. You might be discussing ethnic diversity, but then claims 1 & 2 do not follow. At the very least, ethnic diversity does not ensure that the decisions of ethnically diverse bench are monotonically better than a bench of judges of high intellectual rigor but who are boringly white and male or an ideologically diverse bench that is similarly white and male. For example, does an ethnic Latina who has lived all her life in the cosmopolitan New York understand the motivations of an Evangelical community in the South that de-funds the construction of an abortion clinic, ostensibly for the use of “undocumented” workers nearby? (I am NOT a social conservative) What about the diversity of ideology that a mutualist-socialist judge might provide, when he empathizes with the efforts of locally-grown food movement to escape a burdensome federal regulation lobbied for by Big Agra to put competitors out of business? That was the difference between Sotomayor’s statements and Alito’s at his confirmation hearing. The fact that an equally wise people of two different ethnicities “could not” come to the same conclusions.
May 31st, 2009 at 12:19 pm
Ass by name, ass by nature. The quality of trolling here has plummeted since the election.
May 31st, 2009 at 12:43 pm
Donkeys live a long time; you’ve never seen a dead donkey.
May 31st, 2009 at 1:04 pm
That was the difference between Sotomayor’s statements and Alito’s at his confirmation hearing. The fact that an equally wise people of two different ethnicities “could not” come to the same conclusions.
Sotomayor:
So by process of elimination, I guess Alito must have claimed “equally wise people of two different ethnicities ‘could not’ come to the same conclusions.”
May 31st, 2009 at 1:12 pm
All I know is that the president has all sorts of “inherent” powers that are not only not in the Constitution but, in fact, directly contradict the plain language of the Constitution. It all apparently stems from the fact that the Constitution mentions that the president shall be the Commander in Chief of the army and navy. The president can even sign a law and then ignore it and not enforce it because he doesn’t like it. He can also crush the testicles of children if he wants — it’s all right there in the text!… to which conservatives are forever moored.
I learned this from the strict constructionists and texualists who only follow what the Constitution says and scoff at “penumbras” and the idea that there is anything ambiguous in the Constitution at all.
Also, the fact that the US needed a well-regulated militia in 1787 means that I get to carry various machine guns around today. Or something.
May 31st, 2009 at 1:44 pm
El Cid,
Everyone says, shut the fuck up.
We certainly do not.
We do, however, tell people who refer to white people as “we”, as in “how can we overcome our privelege” and then pretend to be black to give cover to their racist screeds to shut the fuck up.
May 31st, 2009 at 5:14 pm
Empathy is how lay people decide cases. Republicans are just afraid that Sotomayor might empathize with the wrong class of people. Pure and simple.
May 31st, 2009 at 6:01 pm
The cons are gifted when it comes to convincing their followers that their radical ideas have a long tradition. Textualism is all of a sudden the way the Constitution was intended to be interpreted by the founders and not a perspective that is little more than twenty years old and the brainchild of a liberal.
May 31st, 2009 at 9:08 pm
It’s just not true that only unclear cases make to the appellate level.
What conservative object to is liberals feigning confusion when the constitution gets in their way. For example, there is no honest debate that the constitution prohibits affirmative action, the New Deal, and allows for state to prohibit the killing of fetuses.
May 31st, 2009 at 9:43 pm
For conservatives, the notion of an Ideally Objective Judge has the same purpose as the notion of a Perfectly Competitive Market: it’s a rhetorical weapon in the war of the powerful against the powerless.
May 31st, 2009 at 10:04 pm
Even if one could be 100% objective (which one can’t), one would have to ask to what end one was being 100% objective. If it’s the perception that the Constitution was originally written as anything other than a compromise to serve the purposes for which it was being composed at the time, then it’s huey.
“…the original understanding was that original understanding was irrelevant.”
I find it odd when Teagbaggers carry on as if the founders didn’t write the Constitution and establish a government without a serious intention to levy taxes. If the founders wanted to live in a Libertarian utopia, then they made a huge mistake forming a government.
May 31st, 2009 at 11:17 pm
For example, there is no honest debate that the constitution prohibits affirmative action, the New Deal, and allows for state to prohibit the killing of fetuses.
Oh. Well, sucks that you lost it, then.
June 1st, 2009 at 3:52 pm
Wiley,
If the Founders thought they were enabling a progressive state, it is strange that they debated and thought so endlessly about the manner by which to circumscribe the State’s and Judiciary’s powers, instead of making it clear that they were investing broad discretion into the offices of our philosopher-kings.
June 1st, 2009 at 4:54 pm
If it were merely a matter of logic to parse constitutionality, we wouldn’t need 9 justices. We could have just one justice who cranked out decisions and went home early to play golf.