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Do Justice
Posted by: Jon Henke on Friday, January 13, 2006

Dale Franks recently related the "story of Judge Learned Hand and Justice Oliver Wendell Holmes" wherein "Judge Hand ran towards Holmes' carriage and shouted, 'Do justice, Sir! Do justice!' to which Judge Holmes replied, "That is not my job, sir. My job is to apply the law."

It's a telling story, illustrating the fine distinction between views of the judiciary — i.e., wise solon, or dispassionate referee; ultimate arbiter of justice, or subservient applicant of the law.

It was also, as it turns out, a fairly prophetic analogy. Writes Michael O'Hare at The Reality Based Community
Alito knows the law, but he doesn't seem to know, or care about, The Law. Every issue in the hearings was immediately reduced by the nominee to a technical question of almost bureaucratic rule manipulation. This approach is a good one for nearly all the cases courts hear, but it's not what the Supreme Court is about.

He doesn't have a screw loose; what he has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice. Not a case came up for discussion in which he registered that one or another outcome was just wrong, outrageous to a sense of decency, or to him. [...] It wasn't exactly Pilate washing his hands, but the man appears to be completely comfortable dealing with frightful social wrongs by moving the issue down the hall to another office. Sometimes the Court has to do this, but to Alito it's an especially good day's work, not a disappointment.
Included in O'Hare's critique are the observations that (1) Alito has suggested that injustices as a result of bad laws are the proper purview of the Legislative branch, and that (2) Alito's methods are good for "nearly all the cases courts hear", but it's "not what the Supreme Court is about".

Those are very strange criticisms, indeed, since (1) judges are not Constitutionally tasked with "fixing" bad laws, and (2) O'Hare's acknowledgement that Alito's approach to jurisprudence is "a good one for nearly all the cases" courts hear, but not for the Supreme Court would — even if we accept his premise — would seem to have little bearing on Alito, since Alito has not, in fact, been on the Supreme Court yet.

The theme is picked up and echoed by Atrios and Kevin Drum. It's going to be very difficult for liberals to disavow the "activist" label, while at the same time complaining that Supreme Court nominees are insufficiently activist. Good luck with selling the public on "Alito pays too much attention to the law".

Apart from anything else, it's the exact opposite of the democratic process, and it would seem to violate the Rawlsian "veil of ignorance" behind which justices ought to decide cases regardless of their own personal perceptions of justice.

UPDATE: Caerdroia has an excellent post covering many similar points:
For the Left, judges are legislators in a real sense: they must decide whether a law is Right and Just (by the Left's standards, mind you). For the rest of us, a judge's job is to decide what the law allows and compels: to judge, not legislate.
He also notes that, since people's perceptions of justice differ, this would make the law extremely unpredictable with every judge, ultimately, a law unto himself.
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Previous Comments to this Post 

I would point out that much of the law is based on common law principles and that as the highest federal court, the Supreme Court is the ultimate determiner of federal common law. In that sense, there is a difference in principles of justice and principles of application, and the Court’s sense of justice will inform these kinds of decisions. It is one thing for a court to take the plain meaning of a statute and turn it on its head because the judge doesn’t agree with the statute. Most would agree that such behavior is judicial activism that should not be countenanced. It is quite another to say that when a court creates an interpretative rule under common law that the court is being activist. In that instance, it seems to me that the court is applying its collective sense of justice to the case and whether you believe it to be activist depends in great part on what outcome you would prefer. A good example is the case recently argued before the Supreme Court involving the use of newly discovered DNA evidence, House v. Bell. Whichever way the Court decides, I would not view the outcome as an "activist" result, but rather one in which the Court has properly applied its collective views of "justice" to the case at hand.
Written By: Steven Donegal
URL: http://
Jon: In their scheme to balance the powers of the three branches of Government, who did our Founding Fathers intend to "fix" unConstitutional laws?
Well Book it’s too late to really argue this, but I will point out that the case of Marbury v. Madison has the USSC granting ITSELF that power. Because Marshall was such a brilliant tactician and strategist the concept of "Judicial Review" was accepted, however there is NOTHING in the US Constitution granting the Judiciary the "Right", "Power" or "Duty" to determine the constitutionality of a law, much less "fix" it as you say.

Yes it’s too late change Marbury and I don’t know that I’d try to any way, BUT please don’t assume that the USSC has an inherent right to determine constitutionality.

PLUS, constitutionality is one thing, legislating is another. It is one thing to hand down "separate but equal" or "Integrate" but it is another to then determine exactly HOW something is to be accomplished. A prime example of court intervention and legislation is in Kansas City MO where a Federal Court forced the state of Missouri and Kansas City to expend MILLIONS of dollars on a "magnet school" approach to integration and to remedy minority test score gaps. The result was an impoverishment of the STATE system, further white flight and CONTINUED MINORITY FAILURE within the supposedly reformed school system. This seems to me, at least, a classic case of a judge legislating. A judge may find something unconstitutional, and yet not mandate ANY PARTICULAR SOLUTION.
Written By: Joe
URL: http://
Jon: In their scheme to balance the powers of the three branches of Government, who did our Founding Fathers intend to "fix" unConstitutional laws?
"Unconstitutional" is different and far narrower than merely "bad".
It is one thing for a court to take the plain meaning of a statute and turn it on its head because the judge doesn’t agree with the statute. Most would agree that such behavior is judicial activism that should not be countenanced. It is quite another to say that when a court creates an interpretative rule under common law that the court is being activist. In that instance, it seems to me that the court is applying its collective sense of justice to the case and whether you believe it to be activist depends in great part on what outcome you would prefer.
Indeed. My objections are to courts substituting their politica judgement for legislation, creating new laws out of "penumbras and emanations" and generally entering the arena of policy as opposed to application.
Written By: Jon Henke
O’Hare didn’t say that judges should "fix" bad law, as you imply. Your readers are advised to read O’Hare for themselves and not rely on your interpretation. Further, you pretend to be a libertarian; if so, Alito’s doctrine of the "unitary executive" should make your skin crawl. It’s radical and totally out of step with any honest reading of the intent of the authors of the Constitution. And now the boy will be all set to apply this nonsense to case law. Yet, I assume, Alito can’t possibly be "activist" because he’s not a liberal. Good grief.
Written By: maha
Well, Maha, I don’t "...pretend to be a libertarian". I’m not. Your two options are Republican or Democrat. Which do you prefer? There ISN’T GOING TO BE A LIBERTARIAN SUPREME COURT NOMINEE.
Written By: Joe
URL: http://
Is "unitary executive" the latest scare phrase?

From the hearings:
LEAHY: (inaudible) All right.

Under the theory of unitary executive that you’ve espoused, what weight and relevance should the Supreme Court give to a presidential signing statement?

I ask that because these are real issues. I mean, we passed the McCain-Warner et al. statute against torture, when the president did a separate — after he signed it into law — he didn’t veto it — he had the right and, of course, the ability to veto it. He didn’t veto it. He signed it into law and then he wrote a sidebar or a signing statement basically saying that it will not apply to him or those acting under his orders if he doesn’t want it to.

Under a unitary theory of government, one could argue that he has an absolute right to ignore a law that the Congress has written. What kind of weight do you think should be given to signing statements?

ALITO: I don’t see any connection between the concept of a unitary executive and the weight that should be given to signing statements in interpreting statutes. I view those as entirely separate questions.

The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions.

The scope of executive power gets into the question of inherent executive power.

LEAHY: Let me go into that little bit. Because back in the days when I was prosecutor, I was very shocked what happened on the Saturday Night Massacre.

LEAHY: The president orders certain things to be done. The attorney general says, "No, I won’t do it." He fires him.

The deputy attorney general — he said, "OK, you do it." And the deputy attorney general wouldn’t, saying it would violate the law. Fires him.

They keep on going down. Finally, they find one person, a person you have praised — Robert Bork — who says, "Fine, I’ll fire him. I’ll do what the president says."

You have criticized Congress for allowing these independent agencies to refine and apply policies passed by Congress. You said that insofar as the president is the chief executive, he should follow their policies, not Congress.

So let’s take one for example.

The Federal Election Commission, independent agency. They make policy. Suppose the president, whoever was the president, didn’t like the fact they were investigating somebody who had contributed to him. Could he order them to stop that investigation?

ALITO: Senator, I don’t think I’ve ever said that — I don’t think I’ve ever challenged the constitutionality of independent agencies.

My understanding...

LEAHY: No, but you said — I want to make sure I — my understanding is you’ve chastised Congress for giving so much power to them when the power should be in the president or in the executive.

ALITO: Senator, I don’t think I’ve never said that, either.

I said that I thought that there was merit to the theory of the unitary executive. And I tried to explain how I thought that should play out in the post-Morrison world.

Accepting Morrison as the Supreme Court’s latest decision, in a resounding 8-1 decision on the issue of removal, how should the concept of the unitary executive play out in the post-Morrison world?

ALITO: On the issue of removal, my understanding of where the law stands now is that Myers established that there are certain officers of the executive branch whom the president has the authority to remove as he sees fit.

LEAHY: Of course, he could fire his whole Cabinet today if he wanted to. We all accept that.

ALITO: Well, that was the issue that was presented by the Tenure in Office Act that led to the impeachment of the first President Johnson. And in Myers, Chief Justice Taft, although the act — that controversy was long passed — Chief Justice Taft opined that the Tenure in Office Act had been unconstitutional.

LEAHY: But let’s not go off the subject of these independent agencies that we have set up, using the example of the FEC, the Federal Election Commission. Could the president, if he didn’t like somebody they were investigating, a contributor or something, could he order them to stop?

ALITO: What Morrison says is that Congress can place restrictions on the removal of inferior officers, provided that those removal restrictions don’t interfere with the president’s exercise of executive authority.

So they adopted a functional approach. And that was the court’s latest word on this question.

They looked back to Humphrey’s Executor and Wiener, which had talked about categories, and they — categories of quasi-judicial and quasi-legislative officers — and they reformulated this as a functional approach. And that’s the approach that would now be applied.

LEAHY: Do you believe the president has the power to curtail investigations, for example, by the Department of Justice? The Department of Justice is under him.

ALITO: I don’t think the president is above the law.

ALITO: And the president is the head of the executive branch. And I’ve explained my understanding of the removal restrictions that can and cannot be placed on officers of the executive branch.

LEAHY: But could he order them to stop an investigation?

ALITO: Well, you would have to look at the facts of the case and the particular officer that we’re talking about.

LEAHY: Could he order the FBI to conduct surveillance in a way not authorized by statute?

ALITO: The president is subject to constitutional restrictions and he cannot lawfully direct the FBI or anybody in the Justice Department or anybody else in the executive branch to do anything that violates the Constitution.

LEAHY: I’m speaking now of statute. Could he order our intelligence agencies to do something that was specifically prohibited by statute?

ALITO: Well, my answer to that is the same thing. He has to follow the Constitution and the laws of the United States. He has to take care that the laws are faithfully executed.

If a statute is unconstitutional, then the Constitution would trump the statute. But if a statute is not unconstitutional, then the statute is binding on the president and everyone else.

LEAHY: But does the president have unlimited power just to declare a statute — especially if it is a statute he had signed into law — to then declared that unconstitutional, and he’s not going to follow it?

ALITO: If the matter is later challenged in court, of course, the president isn’t going to have the last word on that question. That’s for sure. And the courts would exercise absolutely independent judgment on that question. It is emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the court.

LEAHY: Now, that is an answer I agree with. Thank you.
Maybe it’s just me, but I can’t buy into the fright words.
Written By: McQ
The courts don’t have the task of "fixing" unconstitutional laws, they may only declare such laws null and void. It’s still up to the legislature to fix the law.

As far as the unitary executive goes, Angry Clam over at Patterico’s Pontifications had this to say about it:
The “unitary executive” does not mean an unlimited executive, as anyone who’s taken a basic course in constitutional separation of powers can tell you. The unitary executive understanding of the government (which is not a given, however… I am simply correcting the definitions and implications) is the fairly noncontroversial position that, because the Constitution states that the Executive is responsible for “faithfully executing the laws,” the Executive is in charge of the administrative state. Thus, according to the unitary executive view, while Congress has the power to determine what the law is, as well as to create various regulatory agencies with greater or lesser delegated authority, all such agencies must, constitutionally, report to the President.
Go and read the whole thing, it’s a long post but worth the read.
Written By: Steverino
What O’Hare seems to be saying boils down to, "I don’t care what the law says, I want a ’fair’ result." Fair of course is a subjective concept as the Left never tires of reminding us with their insistence that the Supreme Court stole the election from Gore. Never mind that the media recounts found Bush would have won under the recount reqested by Gore, and under the recount ordered by the Florida Supreme Court; what they’re after is a "fair" outcome—i.e., a Gore victory.

Conservatives want judges to apply the law, whereas liberals want the judges to interpret (bend) the law to achieve the right outcome.
Written By: Brainster
I dont know if anyone else caught the NARAL/NAACP/BDS_MoA press conference following the committees conclusion (or even listened/watched ALL the testimony), but I was astounded that these folks still maintain that the CAP, Vanguard, unitary executive, outlawing abortion, or strip-searching 10 yr old charges are serious enough to warrant a no vote - even though the [cough] best and brightest [cough] of Democrat Senators utterly failed to provide the even the slightest substanciating evidence.

If one really wants to oppose Alito, I’d suggest sticking to what Professor Turley has said, unless of course you really dont want to be taken seriously. Or unless you can talk Mary Mapes into creating some new circa 1971 documents..
Written By: bains
URL: http://
As Jon points out, the article makes perfect sense. However, I still have a problem with it. If it makes perfect sense, why don’t liberals see the sense of it as well? Oh, it’s easy to write them off as wackos (and sometimes fun, too) but they seem terribly fond of this alternate approach that they call Justice. They don’t seem to see the possible flaws in giving that much power to people who are appointed for life, and not elected in the first place. I can understand their antipathy towards electing said judges – if liberals could solve that one, they wouldn’t have to rely on judges at all, but would elect legislators to get their way as the system was designed to do.
I don’t think that it is hyperbole to compare a group of people who cannot be turned out of office and who have the power to find “penumbras” and “emanations” to justify whatever rules they wish to implement with no other branch of government able to overturn their rulings, to totalitarian dictatorships around the world. The citizens of these poor countries await the deaths of the current ruler (Cuba) or junta members as their only hope for a change other than assassination, a coup d’etat or a successful armed insurrection.
The terrible power of activist judges only goes back to Earl Warren and so far the power has mostly been used to accomplish things that liberals wish to accomplish. Therefore, they seem deadened to the danger. Even the ruling that large corporations [anathema to many liberals] can use the government to take one’s home for private development doesn’t awaken them to the threat to our freedom.
As they envision the possibility of a conservative court wielding this power, they react appropriately and seem to “get it”, but instead of working to assure the cure of the problem of judicial activism, they simply want their guys to wield the power and keep it from the other guys.
Maybe I just don’t understand that judicial impeachment would prevent abuses, but aren’t the justices in charge of the propriety of a judicial impeachment? [see fox in henhouse]
Or, perhaps we should just adopt the Corn Doctrine/Gambit and make sure that the dictators we appoint are libertarian. Oh yes, David Souter. Hmmmmmm.
Perhaps I should better use “Ted Kennedy in your wine cellar” than the old, rural “fox in the henhouse”.
Written By: Notherbob2
URL: http://
I would explain the difference in judicial philosophy as one of fairness versus justice. Fairness is subjective and Justice is objective. Being that the legislature makes laws, it is for them to create laws based on fairness and it is for the judiciary to make laws based on justice. The inability to differentiate the two is the source of judicial activism on the Left. Conservative judicial activism is caused by the inability to differentiate between decency, morality or ethics and justice, which are also not the same, and the former must as well be decided by lawmakers.
Written By: little-cicero
" is for the judiciary to make laws [my emphasis] based on justice." just don’t get it, do you?
Written By: Notherbob2
URL: http://
Doesn’t anyone see the incongruity of saying that people called "Justices" are not tasked with finding and handing down justice but only of applying the Law, however unjust that law might be?
Written By: Craig R. Harmon
Notherbob2, federal judges do, in fact, make law: it’s called common or case law. This has been so since the beginning of our constitutional republic. In most colonies, common law was the system used even before that time.

That is why, for example, establishment clause jurisprudence is not simply based upon whether Congress has passed a law establishing religion but includes whether a display of the Ten Commandments is a part of a larger historical context along with other historical legal influences, all of which, taken together, have shaped our present justice system or is alone and, therefore, seen as a display of a religious text that, given it’s place in or at a courthouse, could be reasonably seen as having some controlling force upon the decisions from the bench. That is why prayers in public schools at events such as class periods or commencements is forbidden while students who, outside of class time, gather voluntarily for prayer and Bible Study are allowed to pray as much as they want without running afoul of the first amendment. The meaning of the Constitution has been shaped from the beginning by decisions handed down by the Supreme Court.

One can say that this is not an inherent constitutional power. That point has been and will be debated. It is, however, the power that it has. That power has never been seriously challenged or even questioned.

The SCOTUS executes this power all the time. Common law shapes what statutes may be passed and what provisions they may contain and thus even if they do not create statutes, justices do control what sorts of statutes may and may not be passed. Even in cases such as Roe, which not only struck down state statutes outlawing abortion but actually determined when and under what conditions states could and could not regulate abortions, become law. You don’t like such laws. You call it a userpation of power. You’d like to see such laws overturned. Nevertheless, they are the law until they are overturned. Executives, State Legislatures or Congress cannot simply legislate or act in contravention of such laws.

Common law precedes the existence of our nation and, although other systems have been suggested, it is the common law system that we have. I don’t forsee it being changed. I would say that it is you that do not get it.
Written By: Craig R. Harmon
You simply have this discussion in the wrong box. You see it as me wanting to overturn RVW so that abortions can be stopped versus you who wish to have them remain legal. The general problem is that liberals have constructed a view of how things ought to be (full of inconsistencies, but just never mind those) and when confronted by someone who has a problem with that view, instead of considering any new information, they simply shove the issue into an existing box. To do otherwise would challenge the whole house of cards. They simply will not move a card and will substitute an endless string of rationalizations, arguments and finally arms-folded-deafness to resist doing so. Those who actually move a card often end up neo-cons and we can’t have that and keep our all-important existing relationships with other liberals, now can we?
The specific problem is that I am 94% or so pro-choice. So your little box that says I have reasoned backwards from my desire to do away with abortion to my position on “penumbras and emanations” (and also shaking beaded eagle claws; but that is another discussion) is not the correct box.
Common law is the mother telling her child about the “two second rule” that allows him to eat the marshmallow he has just dropped. Arguing that the emanations of the two second rule created a right to keep bodily fluids pure and therefore inexpensive wine can no longer be sold in any state in America is not Common law.
Written By: Notherbob2
URL: http://
Um, okay. First I’m a Conservative, not a liberal. Second, I’d be happy as a clam if Roe got overturned...or not since there’s almost nothing left of Roe to overturn. Third, I don’t think that Roe is the way that things ought to be. Fourth, I don’t care which box you belong in. Fifth, I enjoyed Dr. Strangelove as much as the next fellow but what the hell are you talking about? Your above comment is nonsensical. My only quibble is that you seem to be arguing with the proposition that Supreme Court justices make law. They do. They have since the inception of our country and of Scotus. They will continue to do so, whether Alito gets confirmed, an almost certainty, or if nine Alitos get confirmed all at once.
Written By: Craig R. Harmon
Well, OK. Just so you keep an open mind on the subject.
Written By: Notherbob2
URL: http://

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