On the nature of a Judge's opinions

A few commenters, notable Jeff Goldstein ( tip to Instapundit) have noted some apparent confusion over what a Judge actually does in our courts. Or, at least, what a Judge is supposed to do. Having recently served on a jury, I have a fresh recollection of how that particular California judge described his role in contrast with our (the jury's) role. It seemed pretty clear when the judge explained it to us and made a lot of sense. Neither we nor he, he told us, were there to decide what we wanted, that is, to make rulings based on our personal predilections. There was a law to consider. Whether we liked the law or not, that was the law and our duty was to consider the facts in its light. The judge was even more closely restricted to considerations of the law, and less to an expression of how he liked a witness or the attorney, or how he felt about the socioeconomic effects of the law as defined in California. These things were expressly excluded from both his and our consideration, (at least in court.)

This should be a great comfort. The people who framed the Constitution had some experience with the arbitrary whims of power, and of judges in particular. Keeping the personal passions of judges out of the courtroom remains an important matter today, if my limited observations are typical. I've met a few judges and they seem to take this sort of thing pretty seriously. Most lawyers I know do as well. We should not find it hard to imagine that a professional person be able to disregard personal feelings in the course of their duties, we ask policemen to do it everyday— doctors, teachers and bank loan officers too. Certainly a jurist with long experience and a reputation for brilliance like Samuel Alito should be able to consider important cases based on the relevant law alone. Especially since, as an Appellate Judge, that is his primary function within the system. Goldstein responds to comments about the most controversial of Judge Alito's decisions:

At this point, it is important to remind readers that Judge Alito’s role in all this touches on none of these social issues-no matter how desperately those who oppose his SCOTUS nomination try to switch the grounds of debate to make it so; instead, Alito’s role was to decide whether the Pennsylvania legislature had the Constitutional right to pass such a spousal notification law, and Alito decided that they did, using Justice O’Connor’s “undue burden” standard-and existing analogous legislation-to decide the case. His role was not to decide whether or not the Pennsylvania statute was a bad law. That is the debate we are having here. Instead, his role was to decide whether the law passed Constitutional muster, and his thinking, from a legal standpoint, is rigorous and well-argued.

Let us imagine a judge who, presented with an accused rapist, is moved by his personal revulsion for rape to admit illegally obtained evidence. A personal revulsion to rape is a laudable thing, but most observers would criticize such a judge, and with good reason. Sometimes the law requires judges to release people they personally detest, or to protect activities they personally revile. The newly confirmed Chief Justice is noted for a decision involving a 12-year old eating a french fry on a DC subway. Roberts took the unusual step of indicating that he thought the law, or at least the manner of its enforcement, a bad bit of thinking, but he upheld that it was not a constitutional question.

Some have contrasted Roberts' strict interpretation with Justice O'Connor's less rigorous approach. The last paragraph in this article pretty clearly frames the issue.

...to others, the contrast with O'Connor is striking.

"She has been worried about pragmatic solutions that reach common-sense answers," says Kim Scheppele, a Princeton University law professor who kicked off a lively blog discussion of the two cases with a posting last week. "Roberts says if the law doesn't track common sense, my job is to say what the law is, and someone else is in charge of common sense."

The writer seems to assume that I (the reader) will be shocked and dismayed by Roberts' attitude. Actually, I'm not. Everyone involved in the process needs to use common sense, judges included, but the sense a judge needs concerns clearly seeing "what the law is." I'm perfectly happy to let the legislatures take the heat for their lack of common sense, and to allow them to be answerable to the people for their actions. Some questions, actually most questions, are best left to people who make decisions as a deliberative body (in other words, lots of minds at work) and who are subject to frequent re-election. People who act in private, and are not answerable to the people, should be restricted to clearly defined questions. The right way to handle a bad law is to get a better law, not to get all wishy-washy in interpretation and enforcement.

The popular conception, however, is that judges are just appointed potentates, who create law for the rest of us based on what we hope are beneficent inclinations. Note the thinking in this discussion of Judge Alito's early activities:

But some people are looking at a young Alito to try to find indicators of how he'd vote on certain issues.

For example, Alito joined the Army reserves while he was a college student because his draft lottery number made it likely he would be taken for the Vietnam War, his college roommates said.

Also, 30 years before the Supreme Court decriminalized gay sex, Alito declared on behalf of his group of fellow Princeton University students that "no private sexual act between consenting adults should be forbidden."

Alito, back in 1971, also called for an end to discrimination against homosexuals in hiring.

The underlying assumption here is that the man will decide points of constitutional law based on personal attitudes expressed in college. I hope he would not. If Alito is presented with cases related to any of these questions, I would hope that he applies his understanding of the law and the constitution, acquired in the decades of study and practice since 1971. The questions placed before Supreme Court justices, moreover, are not really of this nature. They do not determine whether it is good policy to forbid consensual private acts, but instead they are asked whether such restrictions are unconstitutional, which s a very different question.

Despite the silly speculations at CNN, Judge Alito seems very much capable of being a disciplined judge of legal matters, and I am increasingly comfortable, even enthusiastic, about his nomination. I hope these hearings, like the Roberts hearings earlier, help clarify the difference between choosing a justice and choosing a legislator.

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