Thursday, January 17, 2008

Stupid Laws, Take Two

A reader who wishes to remain anonymous sent me an interesting follow-up to my post on "stupid laws."
I thought it sufficiently interesting to post it here. Note that I'm going to be tied up for the next few days and thus may not post again until the end of the long weekend. But perhaps one of the other bloggers will, or I won't be able to help myself. Anyway, here's what Reader X said:

I understand when judges distinguish in moderate tones their rulings from their policy preferences---I believe Justice O’Connor has written in some opinions that “if I were a legislator, I might not vote for this law” or something to that effect. This writing has value, I think, because it has the potential to placate disappointed audiences. Sometimes a little rhetorical empathizing with a losing party can be conducive to that party’s acceptance of the outcome. This kind of language also furthers the perception (“illusion” for the strong realists) that law is not just politics, and that judges don’t use the bench as a means to further their own policy preferences.

But a relatively restrained “we affirm but don’t endorse this law” is a far cry from “the law is stupid,” isn’t it? It actually bothered me a little---who are Justices Stevens and Souter to pass non-legal judgment on New York’s judicial elections? It plays into the criticism of the Justices as philosopher kings, sharing their enlightened views with the common people who are fortunate to receive their wisdom. Sometimes indignation or non-legal opining seem appropriate---e.g., criticizing an overzealous executive who blithely disregards constitutional rights; decrying a particularly heartless criminal act; rejecting patently frivolous arguments in terms meant to discourage such arguments in the future. Such remarks can provide helpful signaling (President Bush, be warned: we are not going to rubber stamp your war on terror actions; kids, don’t try to replicate Wesley Snipes’s stunts or his tax strategies) and can serve communitarian values (society, we must let this criminal off on a technicality, but we recognize what an awful person he is and our sympathies lie with the victim). But Justice Stevens seemed content to trash a system that wasn’t morally outrageous or deserving of any special condemnation. Instead, the system is just, well, stupid. If anything, though, the other opinions seemed to demonstrate the intractability of the problem. Justice Scalia noted that the current system was an effort at reform, and, anyway, that smoke-filled rooms are the unfortunate norm in politics. Justice Kennedy’s concurrence explained just how difficult it can be to establish a judicial election system that promotes independent and worthy lawyers onto the bench. In light of his colleagues’ observations, Justice Stevens’ remarks seem even more inappropriate.

A Judge’s opinion that notes the stupidity of a statutory framework for no reason other than to share his personal views seems to serve no helpful purpose. The losing party only becomes more exasperated because she simultaneously learns that a) she’s correct to be offended by the state of the law, and b) there’s nothing the judiciary can to do to help her. The legislature’s constitutional victory is tarnished by the revelation that its laws are stupid. And the court loses a little bit of respectability because the judge can come off as arrogant and incapable of verbal restraint.

Posted by Mike Dorf but written by Anonymous


14 comments:

Mithras said...

It actually bothered me a little---who are Justices Stevens and Souter to pass non-legal judgment on New York’s judicial elections?

I find it hard to get worked up about statements that don't even rise to the level of dicta - i.e., they're not about legal issues at all. On the other hand, judging often turns on the evidence of the reasonableness of the law at issue, so it's somewhat helpful to lower court judges to read a justice explaining the difference between something being stupid and something being so unreasonable that it violates the constitution. From the opinion:

"What constitutes a 'fair shot' is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party’s associational rights. But it is hardly a manageable constitutional question for judges—especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a 'fair shot' at party nomination."

He's saying that outside of broad constitutional constraints, judges aren't competent to rule on these matters. Doesn't sound so Olympian to me.

Just by the way, do any judges ever say, "I love this law but, unfortunately, find it violates the constitution"? I think Scalia may have expressed something to that effect, but can't remember in which case.

Benjam said...

i totally disagree with the content of the post. there is nothing wrong with justices reaffirming the fact that upholding a law as constitutional is not an endorsement of the law on policy grounds.

a number of studies in political science have studied the prevalence of "invitations to override" or instances in which the court will suggest that congress look at rewriting the law. this suggestion can be motivated by the policy preferences of the justices or because the wording of the statute seems to be inconsistent with the likely legislative intent. these invitations can be important signaling devices between coequal branches of government.

lawyers and justices are human beings, who derive an intrinsic value in expressing their views. posner and scalia have written about this. on more than one occasion, i have tried to emphasize "extra-legal" considerations in court, only to be reminded by a judge that "this is not a court of equity."

mithras is right. the logical extension of the post is that justices should not write dicta. i tend to think that would only serve to make opinions more opaque.

it was in raich v. gonzales where o'connor indicated that she would not have voted in favor of the california ballot initiative that legalize medical marijuana. she goes on to vote nevertheless to uphold the law against attack from the federal government. to me, this was valuable insight. it crystalized her concern as federalism-centered.

C.E. Petit said...

Methinks the poster is taking the elevated rhetoric typical of judicial opinions a bit too seriously. This reflects a problem with judicial rhetoric in general — written for lawyers, not for those who must "comport their conduct to the law" — and with the poster's possible unconscious adoption of himself as philosopher-king. Any presumption that a judge, by adopting hyperbolic language understandable to those without a legal education, is revealing him/herself to be a philosopher-king is rather condescending, isn't it?

I interpret Justice Stevens's statement rather differently from that poster. Justice Stevens was attempting to communicate with the polity in the language of common discourse. More judges should do so, and more judges should be as willing as Judge Posner was earlier this week to excoriate lawyers for resorting to languages other than English. Judicial opinions, ultimately, are about communication as much as they are about doctrine. Just look at the problems in civil procedure doctrine caused by the Court's own poor writing... as the Court has itself acknowledged in several cases. That Justice Stevens chose not to be snooty about communication, whereas the poster would require him to be so, says more about who the philosopher-king is in this meaningless dispute than one might wish.

Michael C. Dorf said...

In response to mithras's question: Justice Kennedy's concurrence in Texas v. Johnson comes close to saying "flag burning is unAmerican and I wish it were proscribable but the First Amendment protects it."

Belakazu said...

Wouldn't the classic example be Stewart's dissent in Griswold, calling it "an uncommonly silly law", but arguing for constitutionality?

Hank Morgan said...

I believe it was Justice Thomas in Lawrence v. Texas who called it an "uncommonly silly law," but voted for its constitutionality.

Yes, it's an interesting question whether laws that are "stupid" or "uncommonly silly" can pass rational basis review.

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