Thoughts on the Law

Yesterday afternoon I skimmed the California Supreme Court’s opinion in Strauss, et al. v. Horton, et al., in which the Court held that Proposition 8 constitutes a permissible change to the California Constitution. Prop 8 was a ballot initiative that was approved by CA voters last November. It defined marriage as between a man and a woman, thus making gay marriage illegal. The main issue before the Court in Strauss was whether Prop 8 was a permissible amendment to the state Constitution or whether it was an impermissible revision of the Constitution, such that it could be accomplished only through legislative action. California law allows for the amendment of the state Constitution through ballot measures but requires legislative action for a wholesale revision of the Constitution.

Although the Court entertained various side issues and arguments, the lengthy majority opinion ultimately boils down to two points: (1) the Court’s determination that Californians had long ago agreed upon a very liberal process for amending the state Constitution through ballot initiatives; and (2) the Court’s determination that Prop 8 is not a wholesale revision of the equal protection clause of the Constitution, but rather, carves out a narrow and limited exception to those rights. As a secondary issue, the Court held that Prop 8 does not apply retroactively, meaning all of the gay marriages that took place in CA before the measure was adopted remain valid.

What is most striking about the decision is the almost apologetic tone of the majority opinion. Justice George framed the issue thusly:

First, as explained in the Marriage Cases, supra, 43 Cal.4th at page 780, our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

In other words, we don’t agree with Prop 8, but our personal opinions can’t get in the way of our task of impartially interpreting and applying the law. That sentiment won’t pacify gay rights advocates, but it sounds fair enough, right? We don’t want our judges deciding cases based on personal biases or political preferences.

But is it really possible for judges to interpret the law impartially? What is it that we even mean when we say that judges should be impartial?

I suppose we mean that we want our judges to “follow the law” and not decide cases based on their own beliefs. Of course, we know that deciding a case is rarely as simple as following the law. For that to be true, there would have to be an applicable law or legal authority for every situation that a judge could conceivably come across, no ambiguities in the applicable law, and no conflicting or competing authorities that could apply equally in a given case.

As you can see from Strauss, the reality is that appellate judges must determine what the law dictates in situations where the governing legal authority is contested between the litigants.

So then, how should judges “apply the law” when presented with a new or disputed question of law?

In Strauss, the Court peered back in time so to speak and considered what Californians intended when they created a Constitution that could be amended by a simple majority vote on a ballot measure. This approach of determining constitutional issues by looking at what the drafters/framers intended is known as Originalism, and is currently espoused by Justice Thomas of the U.S. Supreme Court. Originalists believe that the Constitution has a fixed meaning that was determined at the time it was drafted. Similarly, textualists, like Justice Scalia, believe that the interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.

There are both practical and philosophical problems with the Originalist/Textualist approach.

One practical problem is that what the drafters intended at the time they created the constitution is not always known, and so judges are apt to speculate about what they might well have intended, often by reference to the language of the constitution or law. Circular, I know.

A second problem is that the intentions of the drafters of a constitution may not be uniform. For example, the right of freedom of speech, as guaranteed by the First Amendment, meant one thing to Thomas Jefferson and something else to John Adams. (I know this from watching the HBO miniseries on John Adams.) Indeed, our Constitution was a compromise between various people of greatly differing political opinions. How then can judges be expected to look to the framers' intentions to resolve questions of constitutional law?

An even more significant problem is the issue of why we should hold the framers’ intentions above our own moral judgment. The framers lived hundreds of years ago, had different values than we do, and faced different issues than we do. So why should we look to them to determine what our laws should be today?

Cynical legal realists will argue that Originalism and Textualism are merely methods by which conservative judges are able to justify the decisions they want to reach. This makes sense to me. If you are looking for a way to keep the world from changing, align yourself with a theory of judicial interpretation that is bootstrapped to the perceived intentions of people who lived in the 18th century.

In fairness, cynical legal realists will argue that all judicial interpretation is a process by which judges attempt find ways to justify the decisions they want to reach.

That’s not to say that cases are decided arbitrarily by judges without regard to precedent, or that judges are always able to reach decisions that comport with their personal preferences. Judges cannot simply ignore precedent. If an “activist judge” were to start deciding cases based on nothing more than a personal agenda, and without regard for precedent, the judge would be overruled, scrutinized by his peers, slammed in law review articles, and ultimately removed from the bench. So then what is it that judges do? They walk a fine line between ruling in a way that is consistent with their moral conscience and creating a plausibly valid legal opinion given the legal precedent.

I find nothing offensive about the inherent tension in the law between deference to precedent and the moral conscience of judges. If our judicial system did not require that deference be given to precedent, the law would, of course, be inconsistent to the point of being incoherent, and would at times be radically at odds with the prevailing values of society. On the other hand, judges can rarely just "follow precedent" and often have to decide cases based on their own notions of fairness. The statement that judges should never "make law" reflects both ignorance of how legal decisions are reached and a preference for some nonsensical theory of judicial interpretation. Do we really think judges should be deciding cases by divining the dictates of natural law? How does that work exactly? Or perhaps judges should be trying to ascertain the intentions of people who lived hundreds of years ago and, oh by the way, owned slaves. That’s just silliness.

So, maybe instead of saying that we want judges who are impartial—because we know that that’s an absurd idea—we should say that we want judges who are without prejudice, who are honest, who are intelligent, and who are wise.

With all that in mind, it was interesting to read President Obama’s remarks about Judge Sotomayor and the role of the judiciary yesterday morning. He said:

While there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are few that stand out that I just want to mention.

First and foremost is a rigorous intellect -- a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand.

These two qualities are essential, I believe, for anyone who would sit on our nation's highest court. And yet, these qualities alone are insufficient. We need something more. For as Supreme Court Justice Oliver Wendell Holmes once said, "The life of the law has not been logic; it has been experience." Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

Obama makes a tenuous but clever distinction between judges who bring an ideology to the bench and judges who bring a certain experience to the bench. What's the difference? The difference is that "ideology" is a conservative buzz word for "judicial activism." Clearly, Obama's second point about valuing judges who have "a commitment to impartial justice" is merely his way placating conservatives. He's a smart lawyer and a smart politician. He knows that, whether we like it or not, judges make law. The law is, as cynical legal realists say, whatever judges say it is.