Monday, June 07, 2021

The Law & Liberty Blog, Broken Clocks, and the Dangers of Philosopher Judges

 By Eric Segall

I subscribe to a website called the "Law & Liberty Blog" to keep abreast of what folks I normally disagree with are saying and what they think is important and timely. Pretty much every morning I receive an e-mail alert with the day's essays. Some of the contributors have an uncanny ability to dress up their personal political values and preferences in neutral sounding legalese. Occasionally, I respond to those kinds of posts on this page

That said, like a broken clock, every now and then an essay appears on the site that I find agreeable, persuasive, and important. So it was with a piece by Greg Weiner last Thursday titled "Why Would We Expect Philosopher Judges?" Weiner's essay is a response to a truly horrifying social media famous article in "The American Mind" by four folks calling for "A Better Originalism." That article was a conservative manifesto asking judges to pay much less attention to text, history, and precedent, and focus more on turning the United States into a theocratic, gendered society where judges impose a conservative moral vision on the country because...well because those are the political values of the four authors of that disturbing article. 

All you really need to know about that article can be summed up by the authors' tortured description of the American left as a group who wants "to establish, and to enforce ruthlessly, a scheme of 'identity politics' in all branches of American life. The American people are to be broken into a series of tribes, set against each other by color, by race, by 'sexual orientation.'” Why sexual orientation is in quotes is mystifying, as is the call for a "Better Originalism" whereby conservative judges decide cases conservatively regardless of prior law or the Constitution's original meaning.

But back to Weiner. He notes two problems with the call for a "Better Originalism." He questions the premise that all important constitutional issues are also judicial issues, and he wonders whether judges who have the power to impose their moral convictions on the rest of us will act like responsible judges. Both points are important and transcend the issues raised by the "Better Originalism" manifesto.

A representative democracy governed by a written constitution could function quite well with judges who only strike down laws that, in the words of Alexander Hamilton in Federalist No. 78, are at an "irreconcilable variance" with constitutional text, structure, or history. In fact, as I've written before, to the extent we care about how the framers viewed judicial review, they expected judges to use that power modestly, rarely, and only in those cases where the constitutional error is clear. After all, as Weiner observes, judges were once law students and lawyers, and they were trained in advocacy and textual analysis, not moral reasoning. When judges "interpret" vague texts like "equal protection" and "free exercise" with contested histories, they will, absent strong deference to more accountable political officials, inevitably use morality-based reasoning to reach what are usually controversial value judgments. Weiner sensibly asks the question why we would delegate such a task to lawyers and judges. As the early originalists like Robert Bork argued, where text and history are unclear, a judge's job should be to step aside and let the political process, assuming it is functioning properly, work.

Weiner's second point fits nicely with his first one. Judges who feel free to investigate the moral universe and veto laws based on their personal views of the good, the bad, and the ugly will almost certainly abuse their power. My book "Supreme Myths" catalogues how serious a problem this abuse of power has been throughout American history. To Weiner's credit, he doesn't want future judges embracing that moral perspective even if, as the cards now lie, they would likely see the world the way he does. 

Weiner also correctly observes that judges cannot and will not save us when elected leaders make wholly immoral decisions. The Supreme Court was "worse than useless when it came to slavery," and the same can be said of racial issues more broadly for most of our history as well as, in the minds of many, abortion, affirmative action, the balance between gun rights and public safety, and on and on and on.

Weiner points out that the "'Better Originalism" folks criticized Justice Gorsuch for the Bostock decision as an example of why we need judges to look at the moral side of things (and maybe why they think "sexual orientation" should be in quotes). I think it is likely Gorsuch did look at the moral side of things but dogmatically refused to say so, hiding behind the veneer of an allegedly rigid textualism. If I'm right, the one thing worse than judges imposing their own moral values on the rest of us is judges doing that but not admitting that is what they are doing. Gorsuch's votes in two big religion cases Trinity Lutheran and Montana Dep't of Revenue, for example, had nothing to do with text and everything to do with Gorsuch's views on religion. I suspect his views on the perniciousness of sexual orientation discrimination in fact played a large role in his "textual" analysis of Title VII.  The "Better Originalism" folks just didn't like those views.

Weiner argues that the problem isn't necessarily the existence of bad judges but that bad judges exist because we expect them to do way too much. I agree. Limiting judges to the study of text and history, and leaving moral judgments to the people who make the law, would be a much better system of justice. Of course, there may be times when legislators pass laws obviously in tension with the Constitution, and when they do so, those laws should not be given effect. But that is quite obviously not the way judges have operated in our country since at least the Dred Scott decision in 1857. We do not live in a country where judges only strike down laws when the error is clear.

About 18 months ago, I wrote on this blog that a better future for the Court and our country would be one where the Justices return the issues of abortion, affirmative action, and gun control to the states. The Court has now decided that next year it will hear major abortion and gun cases, and the Harvard affirmative action litigation is right around the corner. I suspect that, as a matter of policy, Weiner and I might disagree on these three issues even if we might find common ground in the idea that judges should stay out of these divisive and society-defining questions. I'd like to think that Weiner would agree with what I said in that post:

There is simply nothing in the text or history of the Constitution that privileges a woman’s freedom to terminate her pregnancy over state concerns for the fetus. Similarly, the Constitution says nothing, outside the context of a 'well-regulated militia,' about the proper balance between gun rights and gun safety. And, there is nothing in the Constitution’s text prohibiting the use by public universities of racial preferences to assist traditionally disadvantaged minorities, and if anything, the history of the Fourteenth Amendment suggests such preferences are fully constitutional. In all three areas, the Justices have relied on their own values, politics, and experiences, not text or history, to reach their decisions....

The Supreme Court has played much too large a role in our system of government for far too long....A good start to restoring robust democracy would be to for the Court to extricate itself from the politics of abortion, gun control, and affirmative action.

A "better originalism" would remove judges from making morally questionable decisions overturning the people's laws. In any functioning democracy, people of good faith will disagree on fundamental moral questions and that is why we vote. It is emphatically not why we have judicial review, as Weiner's excellent essay persuasively demonstrates.


Hashim said...

Your equation of the Harvard case with the abortion and 2a cases is curious. Harvard isn't a public university governed by the vague text of the 14A. It is a private university governed by Title VI of the Civil Rights Act, which explicitly bars discrimination on the ground of race within federally funded programs. That language unambiguously bars treating some racial groups worse in university admissions, especially Asian groups that themselves are the victims of past discrimination and certainly haven't received any sort of racial privilege in this country. The sort of morality-based judging that you criticize is the only thing that could be used to contort that clear text to reach a contrary result (either directly or by yoking title vi to the 14a).

Joe said...

I will only concern myself with rules set forth on judging from 1787 in a country very different than our own by Alexander Hamilton if it is done in form of rap.

As the early originalists like Robert Bork argued, where text and history are unclear, a judge's job should be to step aside and let the political process, assuming it is functioning properly, work.

This sounds like the so-called Footnote Four rule or the democracy friendly approach of Prof. John Hart Ely Jr. (simpatico of this blog, including his vegetarianism)

It's a significant caveat. For instance, as argued in Justice Kagan's passionate dissent on the matter in Rucho v. Common Cause, partisan gerrymandering is rather reasonably (using the Hamilton/Segall Rule) is a case of the system not "functioning properly" ala the one person/one vote cases.

text and history

That is going to get some debate. Prof. Segall thinks same sex marriage (I won't even go into his interesting article on topless bans) is clearly protected. The Supreme Court ruling was 5-4. This tends to be the case for people who are concerned about judicial restraint. The exceptions result in divisive judgment calls. So it goes. Judges (or whatever you want to call the justices) are humans. The former member of the Trump Administration will disagree with some readers here.

This just underlines my point and I'm not trying to settle the issue. It's silly to even try in a blog comment. It just underlines my point:

"There is simply nothing in the text or history of the Constitution that privileges a woman’s freedom to terminate her pregnancy over state concerns for the fetus."

I find this woefully wrong. The fetus was never treated as full legal and/or constitutional person. The section on the question in Roe v. Wade adequately shows this. My case here is easy. I don't have to, e.g., refute the argument put forth by the best advocate probably in the ways -- the woman defending the Georgia abortion regulations -- that a balancing of interests is warranted that allows abortion in only limited cases.

It is that "simply nothing" favors the woman. Ditto that "simply nothing" in text and history helps. It's not -- Prof. Segall's strongest sentiment in my view -- that in practice Roe was misguided as policy. (Again, I disagree with him, but it's not my concern.) It's that there very well is "something" here.

A constitutional person who is being forced against her will, in practice much more likely via policy that burdens disadvantaged groups (again, see Footnote Four), in favor of a policy that boils down to a disputed matter of conscience. I see multiple amendments touched upon there as well as centuries of history. Prof. Segall even praised Geoffrey Stone's book ("Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century") to show "something" in history.

Yet again, it is not that ON BALANCE abortion should generally be left to legislatures. But, this isn't meant to be a dig. These issues are very complicated. Since it's (to paraphase someone) "values all the way down," this will include when judges do get involved. Be it by text, history, precedent or whatever.

But, hey, as long as the current Supreme Court was properly put together, I'm somewhat "optimistic," as Breyer might say. Ha ha.

Joe said...

My comment referenced Dorothy T. Beasley, who defended the Georgia abortion "reform" law in Doe v. Bolton. She later became a state judge. She is a quite interesting character.

Michael C. Dorf said...

Eric wrote this before heading off for a break, so I'll take the liberty of responding to Hashim:

(1) I think there's a reasonably good case to be made--and as I understand the evidence, such a case may have been made here notwithstanding the factual findings--that Harvard discriminates against Asian Americans for the benefit of all other applicants, especially white ones. The plaintiffs were thus very ill-served by having their case brought by a lawyer and organization that exploited it as a vehicle for attacking affirmative action. Although admissions are in some sense a zero-sum game, so that even conventional affirmative action for some groups can be described as discrimination against those groups that don't get the plus, the plaintiffs would have been in a much stronger position--legally and politically--had they focused exclusively on the apparent efforts by Harvard and other elite colleges and universities to restrict Asian American enrollees.

(2) Hashim's main point--that the case involves Title VI rather than constitutional equal protection--is odd. Since Bakke, the Court has equated equal protection with Title VI. Thus, while it would be possible to read Title VI and other civil rights statutes differently from the Constitution, case law for over four decades has closed that possibility off. Accordingly, when Eric discusses the Harvard case, he rightly envisions it as presenting the Court with the opportunity to construe the Constitution.

Hashim said...

Mike, given everything Eric wrote in his post, I would think he would disagree with the atextual conflation of the EPC and Title VI. And his post is expressly calling for the SCt to renounce its prior precedent in other respects (as is the cert petn in Harvard), which is why I found it curious that he blindly accepted as given the textual rewriting of Title VI, when rejecting that would be the more natural way for the Court to effectuate his stated goals in this post.

(As for petrs' litigation strategy, they've pretty heavily emphasized the discrimination against Asians, especially in the lower courts where Grutter/Fisher were binding -- the fact that they didn't "focus exclusively" on that narrower argument seems like sound judgment to me, because there's no reason not to tee up the broader question for the Court if the conservatives are so inclined; it's not like the broader argument will distract the conservatives from the narrower, Asian-focused one if that's where they want to go instead.)

CEP said...

One must remember that Plato ultimately disapproved of the "philosopher-kings" he postulated in The Republic. This is perhaps entirely unsurprising given the fate of Socrates, and indeed given the prices paid all too frequently by even slight outliers in that purported paradise and fount of classicism, pre-Roman Greece (all of it, not just Athens). (The preceding sentence bears a Schrödinger's Sarcasm tag: It's impossible to know whether it is really serious without unpacking it first, but unpacking it coherently requires assuming its level of seriousness.)

I also find it a bit disturbing that there's so much focus on what judges can do as a check on the legislature while hiding executive matters under the carpet, and not just via Footnote4ism. Consider Korematsu… and even its partial and somewhat grudging repudiation in Trump v. Hawaii. It's almost as if the imperial/unitary executive is no more involved in law than the legislature is in creating statutory constructions and the judiciary is in creating statutory interpretations; and the tension between such a viewpoint and the policy preferences of both "movement conservatives" and "Trumpist conservatives" is worth some serious consideration under the rubric "ends shape means, they don't justify them." This just reinforces that searching for a "more natural way" to reach particular policy preferences is usually, at best, self-delusional, and results in destroying villages to save them.

Eric Segall said...

Hashim, your assumption is that Harvard obviously discriminates against Asians. The reality is that Harvard wants a diverse class across many categories, and grades and tests scores are not determinative for many people admitted. Not going to discuss this here, but “discrimination” is not a self-defining term. You are light years away from making an argument that it is obvious Harvard is engaging in prohibited “discrimination.” Blacks were obviously discriminated against when they were excluded en masse. That was the motivating factor for Title VI. Nothing about that applies here. I won’t respond again for a bit but wanted you to know my perspective.

Hashim said...

Eric, I appreciate the response while you're on break. Here's my reaction, for if and when you turn back to this:

the sct has said repeatedly that "discrimination based on X" means treating *individuals* differently on the basis of X who are *otherwise similarly situated* with respect to the decision at issue. It is undisputed that Harvard gives preferential treatment ("tips") to certain individuals based on race itself, not just factors correlated with race (such as socioeconomic background or an individual history of past discrimination). And I don't believe that Harvard has ever tried to defend that practice on the implausible ground that every individual who receives such treatment just coincidentally happens to be dissimilar from every individual who doesn't based on some other non-race-related factor - which is unsurprising, because otherwise Harvard would just use that non-race-related factor as the basis for the tips, rather than using race. The simple and essentially undisputed fact is that Harvard will take two students who are otherwise indistinguishable in every way (both academically and socially), and will sometimes (not always) give one of those students a tip based on race alone. Regardless of what Harvard's motive for doing so is (diversity, racial balancing, animus, or something else), that is plainly "discrimination based on race," both as a matter of ordinary English and as the Sct has consistently defined the term (before atextually deviating from it in affirmative action cases). (And btw, I'm not aware of any time when blacks were "excluded en masse" from Harvard but asians were not - are you? I am aware of Harvard's systemic discrimination against Jews in the early 20th century, but apparently that doesn't justify affirmative action for them...)

Eric Segall said...

“The simple and essentially undisputed fact is that Harvard will take two students who are otherwise indistinguishable in every way (both academically and socially), and will sometimes (not always) give one of those students a tip based on race alone. “ There is no such thing as those of us who have served on admissions committee know.