Free Markets, Free People

Policy Maker or Neutral Legal Umpire?

Which of those descriptions in the title would best describe your understanding of a Supreme Court Justice?

If you wonder what President Obama wants in a Supreme Court Justice, take a look at this excerpt from his speech explaining why he couldn’t vote for Justice Roberts.

He’s describing that 95% of the cases before the court will find all justices coming to the same conclusions. However, it is the 5% that concerned Obama and determined his inability to vote for Roberts. Here’s what he said:

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

“Empathy” and “heart” do not equal “rule of law”.

Thomas Sowell distills the essence of the argument against Obama’s assertion:

Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.

Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.

[...]

It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.

And that is reason enough why all of his nominees should be subjected to rigorous examination that requires them to explain their judicial philosophies in light of the president’s stated desires.

~McQ

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15 Responses to Policy Maker or Neutral Legal Umpire?

  • The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

    If they can do this to the 2nd amendment, what stops this from apllying equally to the 1st amendment.

  • In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

    Hmmm… I wonder how this sort of thinking (I use the term loosely) applied in, oh, Dred Scott or Plessy v. Ferguson.  Somehow, I think TAO would be a damned sight less enthusiastic about judges using “what’s in their hearts” if our country were rather more like what it was 100 years ago.

    This is what libs lack the brainpower to understand: once it’s established that a judge can replace the letter of the law with his own internal moral compass, then it’s merely a matter of time before a judge “gores your ox”.  Imagine the hue and cry if some judge, going by what’s in his heart, decides that abortion is murder?  Or that a drug dealer can be executed?  Or that (insert minority here) haven’t got the mental or emotional faculties to vote or serve on a jury?  There are plenty of people who believe these things; would it be OK for them to be judges?

  • What is a neutral legal umpire?   Is a very conservative Judge Scalia truly neutral?  Where does his conservative convictions come from?   I’d say the heart — core values and beliefs about judicial philosophy have to be chosen, people don’t come to them by calculation.  I submit there is no such thing as a true neutral legal umpire.  Humans are emotional creatures, and unless we want a computer to determine supreme court outcomes (and even then humans would have to program it), emotion, empathy, core values and the like — the heart — has an impact on all justices.   To claim otherwise would be to show a lack of understanding of the way humans think and make decisions.

    • Heh. So it is okay for Supreme Court Judges to let emotion influence their decisions instead of pure rationality, but when, according to you,  we here show a little emotion about an issue, that makes our arguments void.

      Well, you have the foolish part down, and the little mind, but not the consistency part.

    • Erb before Obama: always claiming those who disagree with the mighty Erb are relying on emotion rather than reason.

      Erb after Obama: always claiming those who disagree with the mighty Erb are ignoring emotion in favor of robotic neutrality.

      Erb at all times: a laughingstock.

    • Erb:

      We have three branches of government – legislative, executive and judicial.  Their respective roles are specified in plain English in our Constitution.  Article III, Section 2 reads:

      “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;”
      The Supreme Court reads the Constitution, the law or treaty and applies them to cases under review.  As you know, Congress passes legislation; Presidents sign it into law.  Unlike the legislative and executive branches, supreme court justices are appointed, not elected.  The Court can rule on the Constitutionality of a law or be the final arbiter in its application to a specific case, but they have no authority legislate from the bench.

  • No way Scott – empathy as Obama puts it, means you set aside the law and go with your gut.  Look at the Sowell piece again where he writes –

    “Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.”

    I want a judge to rule whether or not a thing is legal as the laws are written.  Hate me if you like, but judge me fairly.

  • O’s saying the letter of the law only takes you so far, and the rest is subjective.   This ain’t rocket surgery.

  • So, if the letter of the law only takes you so far, then you still have recourse to other methods and principlies other than empathy, like liberty, logic, cost-benefit analysis, equality etc., whatever.

    e.g. “I feel bad that the black firefighters couldn’t pass the test, but in the interest of fairness and equality, I don’t want to harm the Hispanic or White firefighters who did pass the test.”

    See, that’s using something other than empathy to decide a case.

    Hell, you could even then say “but the rise of black role models in a community is more valuable than fairness, so we will rule in their favor.” Again, no empathy needed.

    Instead we get, “I feel sorry for those black panthers who intimidated voters, so let’s drop the charges.”

    • The Hartford case is actually worse than that.  Judge Sotomayor ruled against the white and hispanic firemen without explanation.  I am looking forward to having my senator, Jeff Sessions, ask her why she ruled the way she did. 
      .

  • Plus, empathy seems like a way to open the door to extremely dangerous precedents…so black firefighters can not pass a test, but still be promoted, then black surgeons can fail the boards but still be certified, black pilots could fail their pilot’s licensing and still become pilots…

    Or are there limits to empathy?

  • Since one could always find reasons to empathize with either party before a court, it’s really just a euphemism for, “rule however you want.”

  • I think what our liberal commenters are saying is that they cannot overcome their base emotions and animal instincts with their logical faculties and therefore shouldn’t be expected to even try.  This is actually reasonable: I’ve yet to find a lefty who shows any signs of even HAVING logical faculties.  Unfortunately, they want to be in control of deciding what the law is, and this will make life… challenging… for the rest of us who would prefer to live in a world where the law has a plain and consistent meaning and is NOT dependent on the caprice or “empathy” of a given judge on a given day.