The problem with judges

I've already done my juvenile version of this topic with my post about Men in Lime Green, but I thought I would try to say a few serious things here.

Jeff Rosen is a legal commentator with whom I often disagree, but generally I have to give him a few points for being rational. In the Washington Post today, Rosen argues that judges "are being catapulted into public view as personalities who seem fair game for attack rather than as anonymous oracles of the law" for two basic reasons. One is what he calls the "legalization of politics" -- people taking political matters to the courts. Two is the willingness of judges to enter the spotlight, to personalize themselves. He cites, among other things, the memoirs and autobiographies of Supreme Court justices. (He doesn't mention that the trend toward personalizing judges dates from the Bork nomination, when it became apparent that merit was not enough and the nomination process had to become a full-court political press.)

I certainly don't agree with all of his analysis, but I think a fair amount of it is valid. Still, I think he neglects two very important factors -- the desire of judges for fame and the desire of judges to use the law for political ends.

When I speak of the judicial desire for fame, I mean something very simple. Judges, by virtue of their position, are necessarily private people. They speak primarily through their opinions. But like most people who are highly successful in their fields, many judges crave adulation. Let's say you are a judge on a state supreme court. Let's say your name is Roger Traynor. You have a case before you in which an injured person cannot recover damages against the manufacturer of a product because the common-law rule, while no longer requiring privity of contract, requires an implied warranty of safety or negligence by the manufacturer. You are faced with a choice. You can apply the existing law and deny recovery. If you do that, you will be following the law but no one will ever notice you. Or you can create a new theory of liability -- strict products liability -- that requires no privity of contract, no implied warranty, not even negligence. Not only does the latter course permit an injured person to obtain what you see as "justice," but it catapults you into fame and the adulation of law professors everywhere. It's a hard choice, isn't it?

This brings me to the more obvious point -- that many judges consider themselves to the broad authority to "do justice" regardless of the positive law. Doing justice, naturally, is easily confused with pursuing one's own policy preferences; most of us think our policy preferences represent justice, or we would not favor them. But judges are permitted to do justice only by applying the law fairly. On the Supreme Court building is an inscription that reads "Equal Justice Under Law." Not equal justice but equal justice under law. Or, as FDR put it, "We want a Supreme Court which will do justice under the Constitution — not over it. In our courts we want a government of laws and not of men." The institution of judicial review didn't arise because judges were smarter than anyone else or more just. It arose because judges, just like officials in the other branches, had to apply the law in matters that came before them. Judicial review was based on the assumption that judges were going to apply the law, and it therefore carried with it a profound responsibility to follow the law. Felix Frankfurter said that "the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guaradians -- those impersonal convictions that made a society a civilized community, and not the victims of personal rule."

So I would say that Rosen doesn't offer the whole story when he says that judges have become "personalities who seem fair game for attack rather than as anonymous oracles of the law" because political cases have been taken to court. To a large degree, political cases have been taken to court because there are judges who are happy to render political decisions that are not based on a fair reading of the positive law. People wouldn't take political cases to court if the courts adhered to the law and refused to grant the litigants political justice.

There is a lot more to say on this subject, but fortunately I am too tired now to say it.