On Tuesday of last week, I was a panelist at the annual Practicing Law Institute all-day program reviewing the most recent Supreme Court Term. For me, it was an interesting day, and I hope it was useful for the audience members (both live and via the webcast). Most of the discussion focused on specific cases and doctrines, but during the introductory session and at various points throughout the day, we talked about jurisprudence more broadly. Here I want to follow up on a particularly interesting exchange.
There was general agreement that then-Judge (now Justice) Sotomayor's performance at her confirmation hearings reflected some sort of triumph of the conservative view of law. Jeff Toobin was the most critical of Sotomayor, although just about everyone agreed that her effort to sound indistinguishable from John Roberts at his hearings was, at best, a necessary evil to get confirmed. But the question arose: Why was this a necessary evil? With 60 Democratic votes in the Senate, why was it necessary for a wise and, heretofore outspoken Latina judge to pretend that appellate judging, even at the Supreme Court, involves the mechanical application of precedent?
NYU law professor Burt Neuborne had the most provocative hypothesis: Conservatives, he said, have done a much better job of articulating a jurisprudential philosophy than have liberals over the last generation, and the philosophy they have articulated--some version of judicial restraint plus originalism plus formalism--fits the lay public's view of judging. By contrast, the notion of a "living Constitution" is held up as a code word for judges imposing their preferences on society.
UC-Irvine Law School dean Erwin Chemerinsky demurred: Conservatives don't have a better, or even a consistent philosophy, he said. Look at their zeal for color-blindness, a principle that is hardly rooted in the original understanding of the Fourteenth Amendment's equal protection clause, for example. What conservatives have, Chemerinsky said, are oversimplifying and misleading slogans.
I'm inclined to split the difference. I think Chemerinsky is right that the actual performance of conservative judges and Justices belies the claims that they make to objectivity. However, I also think that Neuborne is onto something in noting that, nonetheless, the conservative dogma has broader public appeal. This leads me to think that what we liberals need are better slogans of our own. Just as John Podesta and George Lakoff successfully urged Dems to start adopting framing techniques that Frank Luntz pioneered for Repubs, so we need something equivalent for the judiciary. The idea would not be to replace a judicial philosophy with a set of slogans, but to come up with a set of slogans that captures the core of the philosophy and resonates with the public.
There is no shortage of candidates:
1) We could try to rehabilitate the "living Constitution," but I think it would be better to start over.
2) There are a lot of academic ideas that capture what liberals think good judging is about, but none of them is sufficiently sound-bitish. Ronald Dworkin's notion of "law as integrity" in which notions of political justice make cases cohere is attractive to some academics but too complex for public discourse. Lawrence Sager's notion of "justice-seeking" constitutional interpretation comes much closer, although it's still a bit too academic, as is Justice Breyer's notion of "active liberty."
3) I don't have a clear knockout, but my current idea would be for liberals to say that a judge in the American legal system should aim for "justice under law." This formulation acknowledges that judges don't simply impose their own idiosyncratic views of justice; they are constrained by law. However, by contrast with the formalist view (or with the amoral view supposedly expressed by O. W. Holmes, Jr. to Learned Hand, and predictably trotted out of late by right-wing pundits), the notion of justice under law emphasizes that the law ultimately is about justice. I also count it as a plus that "justice under law" is actually a familiar term in public discourse.
4) Still, we could do better, and there's no reason to limit ourselves to one slogan. Thus, I invite readers to come up with other candidates.
Posted by Mike Dorf