I conclude my column by defending the Court against the charge of deliberate manipulation. In my view, in hard cases, judges' values play at least an unconscious role in their decision making. Accordingly, I defend President Obama--who has said that he would select judges with empathy for others--against the charge that some conservatives have leveled against him of advocating lawlessness. Obama is not saying that judges should ignore the law and vote their values; rather, he has argued that because judges' values play an important role in filling in the law's gaps, it's important to have judges with good values. ("Good" here is of course a contested term, but elections have consequences: President G.W. Bush, by this logic, was entitled to select judges whose values he shared, to the extent the Senate would go along.)
Here I want to call attention to a possible inconsistency in the criticism of the Obama position. That critique trades on a view of the law as more determinate than even the conservatives themselves believe in other contexts. If we assume that legal materials themselves really determine the answers without any contribution from the subjective values of the judges, even in hard cases, then what Obama urges is tantamount to lawlessness. But conservatives don't in fact believe that. Here's the late Chief Justice Rehnquist, speaking for the Court in Butler v. McKellar, which narrowly defined the circumstances under which a state prisoner can take advantage of a new federal constitutional ruling to secure relief via habeas corpus in federal court:
. . . the fact that a court says that its decision is within the "logical compass" of an earlier decision, or indeed that it is "controlled" by a prior decision, is not conclusive for purposes of deciding whether the current decision is a "new rule" under Teague. Courts frequently view their decisions as being "controlled" or "governed" by prior opinions even when aware of reasonable contrary conclusions reached by other courts.In other words, in hard cases, the talk of the law controlling outcomes is just that: talk. Modern conservatives recognize that different judges will draw different conclusions about what the law requires in hard cases. So, what accounts for that difference? Given the inevitable normativity of law, it is hard to imagine that the values the judges hold isn't a big piece of the answer. Indeed, even Ronald Dworkin, who thinks that objective right answers exist in hard cases, describes such right answers as the co-product of legal materials and the judge's effort to synthesize the pre-existing legal materials in accordance with the best account of political morality--and Dworkin does not deny that judges with different values will reach different conclusions about what the best account of political morality is.
Although my column acquits the conservative and liberal Justices alike of the charge of first-order conscious hypocrisy with respect to principles of federalism, the foregoing analysis suggests that conservatives are engaging in a kind of inconsitency at a meta-level--assuming formalist principles to critique Obama even as they reject such principles in habeas jurisprudence. I realize, of course, that the people who have criticized the President regarding how to pick judges do not necessarily endorse every proposition ever affirmed by any conservative Justice, but both sets of commitments are common among conservatives both on and off the courts. It is possible that a similar showing of meta-inconsistency could be made with respect to liberals, but I'll leave that demonstration to my conservative friends.
Posted by Mike Dorf