Judging ‘Judging the Judges’
The Common Law world can be rather opaque. Strange rituals, handed down over centuries – it’s like something out of a Mervyn Peake novel, only in real-life and with fewer owls. To an outsider, then, it may appear to have the same problems as Gormenghast (the fictional society, not the novel)… a world that has become so lost in its own minutiae of tradition that it has lost any exterior meaning, and has come adrift from the moorings of common sense and morality.
As fun as the idea is, it actually isn’t true. Mostly. Which is why today I thought I’d offer some thoughts on a recent online critique of the judiciary: Judging the Judges, by Brianna Rennix and Oren Nimni.
In a nutshell, this is the sort of article that can only be written by someone with no idea of what they are talking about – yet who nevertheless feels qualified to pontificate on that very subject. I am sure we have all done this at some point in our lives (I do it all the time), but sometimes we find ourselves on the other side. Sometimes we are the ones who are left shaking our heads at well-meaning cluelessness. Oh well.
To take this as an example:
The fact that legal arguments are usually completely divorced from reality is partially a function of the law itself, and not solely the judges. That said, nothing prevents judges from acting like rational, normal people instead of playing games with people’s lives and making lawyers jump through hoops. Yet they often play these games, especially at the Supreme Court. They will straight-facedly ask lawyers, for the sake of argument,to justify things that are clearly insane.
Let’s take an example from a recent Supreme Court case: a U.S. border guard, standing on the U.S. side of the U.S.-Mexico border, shot and killed a child who was on the Mexican side of the border. The lawyer for the child’s family, in attempting to sue the border agent, argued that U.S. officials, when they kill people from inside the U.S., should be held liable.
Now, it’s already ridiculous that the lawyer’s liability argument had to hinge on which side of the border the officer happened to be standing on, and not on the simple fact that a child was murdered and the person who killed him should obviously be responsible for compensating the family (I rest my case!). But it gets nuttier. The Court asked the attorney (paraphrasing), “Well, what about drone pilots who sit in Nevada and murder people in Pakistan? Are you saying we should hold them liable?”
The lawyer—knowing that no court thinks drone pilots are liable for anything, knowing that if he says, “yes, they should also be liable” his client’s case will be lost—felt forced to make an argument that of course drone pilots are different, for… for some reason. In reality, of course, there is no substantive difference between a drone pilot who murders people from inside the U.S. and a border guard who murders people from inside the U.S. The lawyer knew this, and the Court likely knew it too. Yet the Court forced the lawyer to go through the exercise of attempting to draw an insincere distinction, making the lawyer look silly and further distancing the Court from the actual important questions.
Where to begin…
The writers confuse legality (with which a court concerns itself) with morality (which it doesn’t). We are not talking moral judgements here – probably for the best, since most people would be uncomfortable with the criminalisation of adultery. But the article does not understand this, considering it self-evidently insane that the court isn’t adopting a “common sense solution” to the problem. In reality, the question of which side of the border the guard was standing on is actually of significant importance. Laws differ between countries and states – whose law applies here? If one does not have the jurisdiction to make a decision… one can’t very well make it, which is why the matter needs to be resolved first.
The supposedly “even nuttier” example shows an even deeper misunderstanding of what is taking place. What you are seeing there is the judge making argument by analogy – the idea that similar acts ought to meet with similar treatments. If X is similar to Y, and we treat X in a particular way, we ought to treat Y in the same fashion. Therefore, if someone believes a border guard and a drone pilot ought to be treated differently (or claims to believe it), they need to justify why the guard and the pilot are in different situations. Far from being a silly intellectual hoop, this is really the bedrock of legal reasoning, without which one merely has raw and arbitrary exercises of social power.
This in turn gets to the heart of the problem with the article. The authors treat judges as people who are tasked with delivering morally preferable outcomes (morally preferable for the authors anyway). They treat legal culture as something that gets in the way. In reality, this culture is a feature, not a bug – consistency and precedent is a conscious attempt to limit power, to make power predictable. No-one wants something as important as prison punishments, or who is liable in a contract situation, to hinge on an individual’s whim – so there’s an entire system built around the judiciary to prevent that happening. Sometimes that results in morally questionable stuff happening, but in those circumstances, the onus is really on the legislature to fix things.
And this is where things get a bit tricky.
You see, I live in New Zealand. New Zealand has a completely sovereign Parliament, no written constitution, and no system of judicially reviewing statutes. Add in the unicameral nature of our Parliament, and no overriding external bodies like the European Union, and you have a monstrously powerful legislature. This is the Western World’s Elective Dictatorship, par excellence, where the only limits on power are political, not legal. Quite apart from the quirks of such a system (most of which were thoroughly explored during the abuses of the 1975-1993 era), laws can be updated and changed very quickly.
The situation is very different in the United States, which is what the article focuses on. Yes, it too is a Common Law country, but in contrast to New Zealand, it has a vast array of checks and balances. Which, amongst other things, means that amending the US Constitution is extremely hard, which in turn means that the United States is left running a twenty-first century society off an eighteenth century document. With legislatures being unwilling or unable to move, it has therefore fallen on judges to try and plug the gaps, and keep the law up to date. However, judges aren’t well-equipped to do this – as I have mentioned above, the very structure of the Common Law system is about constraining arbitrary power via precedent. Judges’ bread and butter is consistency, not change, and even if they are changing the law, they rarely let themselves admit it.
So not only does the article completely misunderstand what judges try to achieve (lawful outcomes, not moral ones), and how they achieve it (recognising and adhering to consistent precedent), but the article also blames American judges for having to do a job they were never supposed to do. Whatever criticisms one can make of judges – and the article occasionally stumbles across a valid one or two, more by good luck than good management – Rennix and Nimni’s argument is simply too structurally flawed to take seriously.