Posted by Orin Kerr:
Discretion, the Rule of Law, and Political Ideology:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239668998
Last week, I [1]posted the facts of the recent Third Circuit en banc
decision in Pierre v. Attorney General and asked readers to chime in
with what they would do if they were judges. Recall that this was the
case with the inmate who was to be deported to Haiti where he would
likely starve to death for lack of medical attention. The legal
question was whether this amounted to "torture" given the requirement
that torture must be an intentional act.
[2]The results were quite interesting in light of the political
breakdown of the respondents. Among readers who self-identify as
politically right of center, 73% would vote that Pierre must go. Among
readers who self-identified as neither conservative nor liberal, 68%
would vote that Pierre must go. On the other hand, there was a very
different trend among readers who identified as politically left of
center: Among those readers, only 35% would vote that Pierre must go.
(There were 1,563 votes altogether, with 738 from right-of-center
readers, 429 from left-of-center readers, and 396 from "other".)
Why these differences? Surely one reason was that both the facts and
the legal questions had a certain political valence. Political
conservatives would be more likely to see Pierre as unsympathetic and
not deserving of mercy: After all, he had tried to kill his
girlfriend, and he was only asking to be the permanement ward of the
state because he had failed in his effort to commit suicide. On the
other hand, political liberals would be more likely to think of John
Yoo's memos and debates on the meaning of torture, if not capital
punishment more broadly (which liberals oppose [3]twice as frequently
as conservatives). So there was clearly some political valence in the
case that could explain the differences.
At the same time, I think there is a second reason: There are
notable differences between how liberals and conservatives today tend
to talk about and think about the role of the judges. Of course, I'm
painting with a super broad brush here, and the broad brush can't
capture a lot of nuance. But generally speaking, conservatives today
are more likely than liberals to envision a judge's job as following
the law. In contrast, liberals today are more likely than
conservatives to see a judge's job as doing justice where the law is
unclear.
To some extent, this isn't news. Recall [4]the Rasmussen poll last
fall that asked voters "Should the Supreme Court make decisions based
on what's written in the Constitution and legal precedents or should
it be guided mostly by a sense of fairness and justice?" The
differences between Obama voters and McCain voters were stark: 82% of
McCain voters thought the Supreme Court should follow the written
Constitution and legal precedents, while only 29% of Obama voters
thought so. In contrast, 11% of McCain voters thought the Supreme
Court should follow the Justices' sense of fairnesss, while 49% of
Obama voters thought they should.
I suspect we're seeing some of that dynamic in the reader poll in
the Pierre case. In the case of Pierre, I think the mindset of
following the law tends to lead to a pretty clear result that courts
should not interfere with his deportation. The regulation required
intent, and Pierre didn't claim that anyone would intentionally
torture him; nor did he claim that anyone would know he was starving
to death. Rather, he made a claim as to the likelihood of an event,
arguing that what he subjectively would likely experience would be
pain equivalent to what a person would experience if intentionally
tortured. It seems to me that this just isn't enough under the law;
indeed, the en banc Third Circuit voted unanimously not to intervene.
[5]
To read the rest of this post, click here.
The alternative mindset is that if a court observes enough ambiguity
to say the issue is unclear, the judge can then fashion a result that
appears the most just. There were a couple of ways you could try to do
that. You could focus on the intentionality of the likely detention,
or you could assume that someone would likely eventually know that
Pierre was starving. I think both of these arguments have a lot of
problem as legal arguments (see the earlier comment thread, now at
almost 200 comments, for the debates on this), but they were the kinds
of arguments you would have to make to be able to say that Pierre
could stay.
Given the political valance of the two choices in the Pierre case,
it's hard to estimate how much effect if any the differences in
approach might have on the voting rend. But my own sense is that these
differences in approach are real ones. To be sure, both liberals and
conservatives end up interpreting the law under the influence of their
policy views and cultural orientation. But there is also a difference
in approach, with conservatives more likely to think judges are bound
by the law and liberals more likely to think that the law is ambiguous
and judges should do the right thing within that ambiguity. These
attitudes get overly simplified when politicians speak of them, but we
can see the two roles echoed in that setting, too: conservative
politicians tend to say the Justices should "follow the law, not make
it," while liberal politicians tend to speak of Justices having
[6]"heart" and "empathy." Those slogans reveal an important grain of
truth, I think.
Where do these different attitudes come from? My sense is that they
are mostly if not entirely a product of history. The highest profile
legal debates in the last 50 years focused on whether the Supreme
Court should reject then-existing precedents and constitutionalize
political developments popular on the left but generally unpopular on
the right. Among those who oppose such developments, it's natural to
gravitate to a follow-the-law position: After all, rule of law means
the new approach is rejected under the old precedents. On the other
hand, among those who favor such developments, it's natural to
gravitate to the judicial-discretion approach: After all, seeing
ambiguity and favoring judicial discretion means the old approaches
can be replaced with new ones.
Over time, these positions become habitual in the absence of some
other competing interest. And they lead to the predictable common
criticisms of the other side, too. You know the drill: To
conservatives, liberals can be judicial activists who ignore the law
to pursue public policy; to liberals, conservatives can be dishonest
ideologues who do the same thing but hide their preferences behind
neutral-sounding labels.
Anyway, as I said, this is really painting with a broad brush. Flip
the politics, and these tendencies can go haywire in a hurry. But I do
think there is a real difference there between how liberals and
conservatives today generally tend to approach the role of the courts,
even if these differences are largely just historically contingent.
References
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