Forgive me if I opt out of watching the Senate hearings on
Elena Kagan's nomination to the Supreme Court. Instead of
focusing on the direction in which her values would move the court,
the hearings are sure to be yet another "vapid and hollow charade,"
filled with "repetition of platitudes," as Kagan herself wrote about
such hearings years ago. And she wrote that even before John
Roberts scrapped the bottom of the platitude barrel by declaring at
his hearing to be Chief Justice that "judges are like umpires. Judges
don't make the rules. They apply them," a remark welcomed with
unctuous piety by the senators.
The only interesting thing about Kagan's hearings will be to see
just how fast she eats her earlier words and takes a Girl Scout oath
to set aside her personal views and merely follow the law.
This old story about law--that it can be discovered by
interpreters using objective methods and keeping their personal
values out of it--has held sway ever since civilization invented law.
Nevermind that legendary judges Oliver Wendell Holmes, Jr. and
Benjamin Cardozo early in the 20th century blew the whistle on the
old myth and urged the legal profession to acknowledge that judges
cannot escape their own values in deciding cases. Nevermind that a
group of pragmatic scholars called Legal Realists dominated the legal
academy in mid-century and documented how judges make, and do
not find, the law.
Any breach in the orthodoxy is treated as a rude noise in
church and shooshed by the parishioners of the profession. President Theodore Roosevelt told Congress in 1908 that it should
approve only judges with progressive economic and social views
because "the decisions of the courts on economic and social
questions depend upon their economic and social philosophy."
According to Benjamin Cardozo, who was there, "that statement
when made aroused a storm of criticism. It betrayed ignorance, they
said, of the nature of the judicial process. The business of the judge,
they told us was to discover objective truth."
President Franklin Roosevelt ran into the same wall of scorn
when he proposed his court-packing plan in 1937 to add six justices
to the Supreme Court in order to overcome what he denounced as
the "horse and buggy" mentality of the "nine old men" then on the
Court who were striking down his New Deal programs.
When President Barack Obama suggested that he would appoint
judges capable of "empathy" and deciding "from the heart," he too
was shooshed. And his first appointee to the Supreme Court, Sonia
Sotomayor, repudiated his approach, testifying disingenuously that
her judicial philosophy was simply "fidelity to the law." "It's not
what's in the heart that compels conclusions in cases. It's the law,"
Sotomayor knows that the law doesn't compel conclusions in a
case. She knows that the phrase "fidelity to law" is specious because
legal reasoning allows so many techniques to count as fidelity that
virtually any result can be reached. There is no way for an
interpreter to choose among them except by relying on his or her
What about the doctrine of "original intent," doesn't it require
certain results? Nope, in the first place because it is merely one
judicial philosophy, in competition with the philosophy that the
constitution is a "living" document that should evolve with changing
times. In the second place, it's not so easy to discover original intent
because history is murky, so you wind up with equally plausible
contradictory historical accounts. Once again, the interpreter can
rely only upon his or her own values to choose among them.
Aren't there rules of interpretation that judges follow? There are, and for every one there is an opposing one, as the Legal Realists
showed generations ago by lining them up in opposing columns. A
current classroom text on interpretation concludes that "almost
everybody " thinks the rules "are bunk."
Don't interpreters at least have to follow the plain meaning of
words? No, sometimes we prefer to look at the purpose of the words
instead. The Constitution gives Congress power only "to coin money."
Has it therefore no authority to issue paper money? The purpose
approach has rescued us from many such absurdities. Moreover,
words don't have fixed plain meanings anyway. A word's meaning
depends upon its use and context, things that are often shifting and
highly contentious, forcing legal interpreters to make personal
judgments about them.
But doesn't precedent restrain interpreters? The Supreme
Court isn't even theoretically bound by precedent and can choose to
adhere to it or overturn it at will. Lower courts are theoretically
bound but there are no settled rules for what part of a precedent is
binding, so courts can pretend to follow precedent while ignoring it.
The bottom line is that judging is unavoidably subjective. As
Cardozo wrote, a judge is affected by the social and economic forces
of the day as well as "other forces, the likes and dislikes, the
predilections and the prejudices, the complex of instinct and
emotions and habits and convictions. . . ." He deplored the fact that
"there has been a certain lack of candor" about all this.
Nor is that candor likely to emerge at the Senate confirmation
hearings on Elena Kagan. We are in for days of a farce that serves
politics but does not serve the truth.
Benson is the author of The Interpretation Game: How Judges
and Lawyers Make the Law (Carolina Academic Press, 2008)