At the Scene, Dara makes a point I start out being quite sympathetic toward:
We allow the people making law to represent their constituents — in fact, we generally encourage them to resemble their constituents and celebrate their own biographies — but we deny the same sort of personality to the judges who are instructed to interpret the products of politicians’ labor. Those who make law and those who apply it appear as completely different kinds of people, creating an odd divide that often makes it difficult to see the connection between the law of policy and the law of the judicial system at all. Furthermore, the double standard encourages politicians to develop larger-than-life personalities, while discouraging judges from demonstrating personality at all (see also: “pushy,” “sharp-tongued”). As Adam Serwer of the American Prospect put it on Twitter : “If there’s no place for empathy in the courtroom, why don’t we just get Google to design our new robo-judges?”
The first half of this sounds inarguable. But the finish gives me pause. There are two important understandings of law at stake. In the first, we run the risk of treating two very different kinds of law as interchangeable or the same: the kind that legislation produces and the kind that juridical decisionmaking does. Aside from the typical ‘legislating from the bench’ concern, thinking of all law as the product of essentially similar processes leads us to obscure the stark difference between types of judge-made law . The sort of judiciary practices and attitudes that a conservative or a liberal might appreciate vary, I strongly suspect, across these types. The kinds of attitudes and practices typical of a ‘conservative’ common-law judge aren’t those typical of a ‘conservative’ con-law judge.
I worry that this point is going lost in no small part because of the weird and wrong Hobson’s choice that’s taking over the rhetoric surrounding good judging. Adam Serwer’s question is dangerously misleading in its antinomy. At stake is a second understanding, or misunderstanding, of law: that judges who do not simply execute the instructions in a statutory lawbook have no other resources to rely on but their idiosyncratic or ideological feelings. The alternative to judges who rule by emotionality is not judges who rule by technicality. There are a whole host of methodologies available. But in a world in which Justice Scalia is routinely misunderstood to be ‘a strict constructionist’ (he is really a textualist), a grasp of legal interpretation’s rich nuance is pressed flat or discarded altogether.
I can’t help but think much of this is the result of a basic, perhaps willfull, ignorance of the different kinds of good judging requisite to a free society that maintains the rule of law in a manner continuous with its inherited practices. A world in which the only law is constitutional law is one in which the game has already been given away. But in our world, where representative democracy (‘Politics’) is felt to be too slow, too sloppy, and too stupid to be just, every interest and passion is apt to be deemed so urgent an injustice that an end run around politics, straight to the Ultimate Tribunal (‘Law’), is the only decent option. To our great detriment, the empire of law has little room for common-law judging, with its basket of nuanced skills that are neither emocentric nor technocentric — and yes, ‘law and economics’ has a perniciously universalizing logic to it that exacerbates matters significantly.
