Posted by Eugene Volokh:
Supreme Court Justices and "Policy Implications":
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244220709
[1]Ed Whelan (National Review's Bench Memos) writes:
In a May 2006 speech, Judge Sotomayor tells �a joke that [she
thinks] aptly describes the difference between supreme court,
circuit court, and district court judging�:
It involves three judges who go duck hunting. A duck flies overhead
and the supreme court justice, before he picks up his shotgun,
ponders about the policy implications of shooting the duck -- how
will the environment be affected, how will the duck hunting
business be affected if he doesn�t shoot the duck, well by the time
he finishes, the duck got away.
Another duck flies overhead, and the circuit judge goes through his
five part test before pulling the trigger -- 1) he lifts the
shotgun to his shoulder, 3) [sic] he sights the duck, 3) he
measures the velocity of the duck�s flight, 4) he aims, and 5) he
shoots�and, he misses.
Finally, another duck flies by, the district judge picks up the
shotgun and shoots. The duck lands and the district judge picks it
up, swings it over his shoulder and decides that he will the the
other two judges explain what he did over dinner.
So Sotomayor thinks an unobjectionable and apt description of the
role of Supreme Court justices in making decisions involves
�ponder[ing] about ... policy implications.�
(The excerpt above is from the prepared text on pages 10-12 of the
speech (emphasis added). Sotomayor handwrote some trivial changes.)
The trouble with this criticism, it seems to me -- even if you take
the joke seriously on this point -- is that of course Supreme Court
Justices routinely, and entirely properly, consider "policy
implications" in the sense of consequences. Let me just offer a few
examples:
1. In some cases, the Supreme Court acts as a common-law-making court,
or something very close to it, and there is (and should be) very
little controversy about this. Admiralty law is one example. The
defenses to federal criminal charges are another. (Federal crimes are
legislatively defined, but the defenses are not.) The law of many
federal remedies is in some measure another -- consider the
preliminary injunction standard, which calls for considering the
consequences of granting or denying the injunction, or consider the
qualified immunity caselaw, which has largely been developed with an
eye towards the consequences of providing more or less liability.
This is so even when there are statutes, but the statutes are either
deliberately vague or specifically delegate authority to federal
courts. Antitrust law, where the Court has for over a century
interpreted the categorical ban on restraints of trade as an
authorization to develop a law of which restraints are permissible and
which aren't, is another noted example. The fields of evidentiary
privileges and copyright fair use, where the Congress expressly left
the federal courts the task of developing the law further, offer more
examples. In all these areas, the job of the federal courts, and in
particular the Supreme Court, is to develop legal rules that they see
as sensible "[2]in the light of reason and experience," and looking at
consequences ("the policy implications") is an important part of that.
Recall that most of American law (including property, tort, contract,
evidence, and criminal law) was developed by the common-law courts. It
has been in considerable measure codified by legislatures, but
common-law courts continue to develop it. The scope of common law and
common-law-like development by federal courts is narrower, but there
are still considerable chunks in which it persists.
2. But I take it that Whelan is particularly considered about the
interpretation of statutes -- and let's even focus on those statutes
that don't contain broadly recognized delegation of broad authority to
judges -- and of constitutional provisions (though Judge Sotomayor
didn't focus on those). Still, it's pretty uncontroversial that even
there judges should look at practical consequences. To my knowledge,
all the Justices, including the strongest textualists and originalists
on the Court (such as Justices Scalia and Thomas), routinely consider
practical implications in interpreting statutes and constitutional
provisions.
The cases that come before the Supreme Court are generally not ones in
which the text provides one absolutely clear result. There are plenty
of such cases in our legal system, but they tend to be resolved early,
precisely because the result is clear. Rather, you often have several
plausible readings. Figuring out the best reading often leads judges
to ask whether one or another reading would have results that are
ridiculous, or inconsistent with what was understood as the purpose of
the provision, or unduly administratively burdensome.
Now one can certainly argue that courts should look first and foremost
at the text and original meaning; but as I mentioned, I think nearly
all Justices and judges would agree that the text and original meaning
are often not dispositive. One can also ask that, within those
boundaries, courts be attentive to precedent. But precedent itself has
often been developed based on considerations of consequences
(especially when the text and original meaning were ambiguous). And
the decision whether to reverse precedent itself often involves
consequentialist attention to "policy implications"; see for instance
two recent reversals of precedent, [3]Montejo v. Louisiana and
[4]Arizona v. Gant, in both of which Justices Scalia and Thomas were
in the majority (and in one of which Chief Justice Roberts and Justice
Alito were in the majority).
3. Finally, recall that many well-established constitutional tests,
including ones that aren't controversial among conservatives,
liberals, or pretty much anyone else, specifically call for an
evaluation of consequences. Even Justices Scalia and Thomas, who would
read the Equal Protection Clause as being a nearly categorical ban on
race classifications by the government, would recognize an exception
for "those measures the State must take to provide a bulwark against
anarchy, or to prevent violence" (such as prison riots or "imminent
danger to life and limb). Likewise, speech restrictions may sometimes
be constitutional if they are necessary to serve a sufficiently
important government interest -- and you can't decide that without
looking to the consequences of the decision.
* * *
I mention all this because talk about how judges shouldn't "make
policy" has been commonplace now, especially on the Right. (Consider
also the fuss about Judge Sotomayor's "the court of appeals is where
policy is made" line.) And I think criticisms of excessive judicial
policymaking -- and in particular, in the sense Judge Sotomayor uses
the phrase in the joke quoted above, decisionmaking based on what
seems to the judge to be likelier to produce good results -- are often
correct. Sometimes the text or original meaning of a binding legal
command is clear, and courts should follow that.
But it's a mistake, I think, to turn that important insight into a
categorical assertion that judges shouldn't "make policy," or should
just "follow the law" instead of "making the law." First, judicial
development of legal rules, with an eye towards their consequences, is
a longstanding feature of American law, recognized and accepted from
the Framers onwards. (Yes, I know that there was often talk about how
the courts "discovered the law" rather than "made the law," but the
reality was that judges did indeed make important decisions based
partly on the perceived consequences of those decisions, rather than
just following unambiguous custom or the commands of abstract reason.)
In the federal courts, the proper scope of the courts' pure
common-law-making powers is less, but it's also supplemented by
deliberate delegations by Congressional statutes.
Second, some judicial attention to consequences is inevitable given
the ambiguity of the text and original meaning of most statutes and
constitutional provisions. And third, the constitutional rules that
courts have developed -- with the support of even those Justices who
care most about text and original meaning -- expressly call for some
degree of consequentialist reasoning in their application.
Any particular decision, or set of decisions, by a court or a judge
can of course be faulted for unduly departing from the commands that
one thinks should be legally binding. But a thoroughgoing condemnation
of judicial attention to "policy implications" in the sense of a
decision's practical consequences strikes me as unsupportable,
especially in the American legal system as it has been understood for
centuries and as it continues to be understood today even by the
judges that the Right most applauds.
References
1.
http://bench.nationalreview.com/post/?q=NmJkYzA2NDZkNjNiN2FiYWI0NjU4ZGVhYzhlNzY0YTE=
2. http://www.law.cornell.edu/rules/fre/rules.htm#Rule501
3. http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf
4. http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
