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," said she.
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 own values.
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)