My favorite argument used by judges has to be the claim that they personally think a law they’re reviewing for its constitutionality is absurd, but that it’s outside their power to overturn it. An excellent example is Justice Stewart referring to the law in Griswold banning contraceptives as an “uncommonly silly law,” but then refusing to overturn the law because he didn’t share the majority’s view that the Constitution created some degree of privacy protection. I think either Scalia or Thomas, or both, used the device in the sodomy case, Lawrence v. Texas, as well as in several other cases.
This is a very useful tool for judges because they can seemingly uphold very stupid laws and build up their liberalism street cred in the process. And in that, it is extremely self serving. What’s more emblematic of the liberal judge than someone who can cooly put aside his political preferences, especially when they’re in direct opposition to his legal instincts? Or as Duncan Kennedy puts it,
The essence of individualism is the making of a sharp distinction between one’s interests and those of others, combined with the belief that a preference in conduct for one’s own interests is legitimate, but that one should be willing to respect the rules that make it possible to coexist with others similarly self-interested.
The judge, as the agent of the state, must be able to not only respect “the rules that make it possible to coexist with other similarly self-interested,” and tolerate views that are jurisprudentially opposed to his, he must also neglect his or her individualism and have no preference at all.
But we know that this is an unattainable goal. To perceive is to judge, and no judge is really unbiased. We know that everything is subjective, including judges’ “objectivity.”
(For the most part, modern journalism worships a similar false idol, often by sacrificing quality for the sake of “objectivity“.)
Even though liberalism sees itself as having no orthodoxy, except the freedom of each person to choose his/her version of the good life, that in itself is an orthodoxy. The claim that liberalism makes no distinction is simply false because liberalism prefers liberalism, and that is a substantive judgment.
This is I suppose my–admittedly late–response to those who seek to seek to gain politically by highlighting Supreme Court nominee Sonia Sotomayor’s biases. Of course, Sonia Sotomayor is no more biased than any other judge.
However, the claim that everything is political doesn’t get us very far. When the Critical Legal Studies devotees say “everything is political” they mean “everything is political.” So what follows from this? “The ultimate goal is to break down the sense that legal argument is autonomous from moral, economic, and political discourse in general,” says Kennedy. But this is merely a descriptive goal—a call to some degree of awareness—even if some CLS academics would not agree. Critical Legal Studies basic disdain for current institutions has not been followed up with any normative proposals.
The awareness is an important one, especially because it immediately makes us suspicious of societies or enterprises that proclaim themselves to be above politics. I say societies specifically because the story that sent me on this whole rant was the response of the Cuban national assembly to the U.S. Supreme Court’s refusal to review the case of five Cuban spies convicted in Federal Court. (Ever since the spies were captured and tried, Cuba has used them in an aggressive anti-American political campaign, and refers to the them as the “five heroes.”)
Reacting to the Supreme Court denying review of the spies’ case, the Cuban Assembly said, “The judges did what the Obama administration asked them to do.” The Cuban national assembly knows that the president of the United States has no influence over the cert process, just like the Justices above knew those laws were stupid. But the Cubans are playing a different game–politics.
The official line of the Cuban government is that Cuba is a society above politics, above the bickering, and the culture wars. But of course it isn’t. If anything, the Cuban government is more political than most governments, and certainly more political than democratic governments. It thrives on conflict and enmity. The difference between Cuba and societies with overt political attitudes is a healthy system of critical review, where generally only those with fringe followers, like the Glenn Becks and the Rush Limbaughs say stuff so outside the norm.
So, don’t believe it when they tell you politics shouldn’t factor into an enterprise because, really, everything is political. And whoever tells you otherwise is probably just playing politics.
