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