“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.
We [judges] mean to accomplish what the legislature intended. . . . . The difficulty is that what the legislature intended is ambiguous. In a significant sense there is only a general intent which preserves as much ambiguity in the concept used as though it had been created by case law. . . . . For a legislature perhaps the pressures are such that a bill has to be passed dealing with a certain subject. But the precise effect of the bill is not something upon which the members have to reach agreement. . . . . Despite much gospel to the contrary, the legislature is not a fact-finding body. There is no mechanism, as there is with a court, to require the legislature to sift facts and to make a decision about specific situations. There need be no agreement about what the situation is. The members of the legislative body will be talking about different things; they cannot force each other to accept even a hypothetical set of facts. . . . . Moreover, from the standpoint of the individual member of the legislature there is reason to be deceptive. He must escape from pressures at home. . . . And if all this were not sufficient, it cannot be forgotten that to speak of legislative intent is to talk of group action, where much of the group may be ignorant or misinformed.
In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. . . . . The problem of stare decisis [legal precedent] where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. . . . . The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive.” --- From An Introduction to Legal Reasoning by former US Attorney General Edward H. Levy, 1949, summarizing the concept of American Legal Realism that had been used for decades to interpret US laws and the US Constitution
US Senator Ben Sasse (R-NE): “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”
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The comments below are adapted from a blog post here two days ago, Did Republican Supreme Court justices lie about abortion?. Some interesting points are made that are useful to have in mind as some context for the Supreme Court as it embarks on what is going to be years of anti-secular, radical right social engineering. That engineering will be driven by sacred Christian nationalist dogma and blind faith in laissez-faire capitalism. Republican legal reasoning in this re-engineering of American society will be obscured by smoke and mirrors that the Republican judges will falsely tell us is the only proper constitutional interpretation.
The point is this: We are going to be socially engineered upon good and hard, whether we like it or want it or not. Republicans want it and they are now on the verge of getting what they have been paying and fighting hard and dirty for decades to get.
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Comment: Many years ago in a speech at the Manhattan Institute, a radical right rich people group in New York city, Supreme Court Justice Clarence Thomas articulated what appears to me to be what is now mainstream radical right judicial thinking about precedent or stare decisis.
Paraphrasing Thomas from memory: Of course I believe in and adhere to stare decisis. All judges do. But I will not hesitate to overturn a settled precedent if it was wrongly decided. Then I would not hesitate to vote to overturn it.
Unless I'm mistaken, one of the Republican's comments in his oral argument comments about the Mississippi abortion law now under review by the court clearly echoed that 'logic'. I do not think it was Thomas, but just can't remember who it was. I think it was Roberts who made this argument. He framed the question asking if a court decision was wrong from the day it was decided, like Plessy, and nothing had change in the interim, should that precedent be overturned some time later by a later court decision? The judge was clearly saying that a bad decision from the get go has little or no constitutional basis to stand on. Other arguments such as people relying on the old decision just do not matter enough to change that outcome.
Paraphrasing Thomas from memory: Of course I believe in and adhere to stare decisis. All judges do. But I will not hesitate to overturn a settled precedent if it was wrongly decided. Then I would not hesitate to vote to overturn it.
Unless I'm mistaken, one of the Republican's comments in his oral argument comments about the Mississippi abortion law now under review by the court clearly echoed that 'logic'. I do not think it was Thomas, but just can't remember who it was. I think it was Roberts who made this argument. He framed the question asking if a court decision was wrong from the day it was decided, like Plessy, and nothing had change in the interim, should that precedent be overturned some time later by a later court decision? The judge was clearly saying that a bad decision from the get go has little or no constitutional basis to stand on. Other arguments such as people relying on the old decision just do not matter enough to change that outcome.
Response: Sure. I say when in Rome do as the Romans do unless I don't approve of what the Romans do, in which case I don't do as they do. Wait, I think I just went full circle there. That's my response to people like Thomas. He uses the words "wrongly decided" like their meaning is self-evident. As you say, there have been decisions which clearly contradict the constitution (Plessy being one, Dredd Scott another), but this is pretty rare. More often decisions are controversial and can be defended and attacked by legal thinkers depending on their interpretations. Republicans like to pretend they have some monopoly on the "original meaning" of the constitution which can then be used as basis for evaluating all decisions.
When things don't satisfy their self-imposed criteria, they say they are "righting the wrongs of bad decisions." When anyone else breaks from precedent they label it as "judicial activism." Their philosophy is circular, self-serving and logically crude. It amounts to claiming superior insight into the meaning of the constitution on no logical basis. Originalism is a fig leaf for their own "judicial activism." At least the legal realists admit that the meaning of the constitution is not fixed once and for all, and that there should be flexibility in light of changing social conditions, mores etc. Originalists would have you believe all "good decisions" can be easily derived from the constitution.
Also, I've never been entirely clear on how they square the 14th amendment with 1787 constitutional convention, which drew up and agreed on the original document. In my opinion, the post civil war amendments (13th (1865), 14th (1868) and 15th(1870)) were morally and politically driven revolutionary departures from 1787. Those departures were made necessary because the bad compromises in the supposedly hallowed, 'original text' of the constitution resulted in civil war. So the victors-- radical Republicans-- wrote the 3 Reconstruction era amendments), and in so doing completely changed constitutional law forever. Without the 14th Amendment, the Bill of Rights, for example, would not apply to the individual states but only the Federal government.
Add to that, the fact that the 14th Am. was used for decades not as "intended" for civil rights, but for corporate rights with phrases like "liberty of contract" designed to minimize any government regulations. The history of legal decisions is anything but an inexorable, consistent and principled march from Philadelphia lawyers in 1787 to present. The Republicans seem to have a problem admitting this, or the obvious relevance of historical changes and contexts that influence the Court. The American people should also stop going along with this pretense that somehow the judiciary stands outside of historical and political cross-currents, ideologies, intellectual fads and the like. We need, also, to see the constitution as something less than Holy Writ that issued whole from the mind of Zeus in the 18th century.
Justices ARE politicians of a kind. They're appointed by and given immense powers within the US Government. They are nominated by particular Presidents who serve as the leaders of particular parties. I think deep down most people have a sense of this.
Also, I've never been entirely clear on how they square the 14th amendment with 1787 constitutional convention, which drew up and agreed on the original document. In my opinion, the post civil war amendments (13th (1865), 14th (1868) and 15th(1870)) were morally and politically driven revolutionary departures from 1787. Those departures were made necessary because the bad compromises in the supposedly hallowed, 'original text' of the constitution resulted in civil war. So the victors-- radical Republicans-- wrote the 3 Reconstruction era amendments), and in so doing completely changed constitutional law forever. Without the 14th Amendment, the Bill of Rights, for example, would not apply to the individual states but only the Federal government.
Add to that, the fact that the 14th Am. was used for decades not as "intended" for civil rights, but for corporate rights with phrases like "liberty of contract" designed to minimize any government regulations. The history of legal decisions is anything but an inexorable, consistent and principled march from Philadelphia lawyers in 1787 to present. The Republicans seem to have a problem admitting this, or the obvious relevance of historical changes and contexts that influence the Court. The American people should also stop going along with this pretense that somehow the judiciary stands outside of historical and political cross-currents, ideologies, intellectual fads and the like. We need, also, to see the constitution as something less than Holy Writ that issued whole from the mind of Zeus in the 18th century.
Justices ARE politicians of a kind. They're appointed by and given immense powers within the US Government. They are nominated by particular Presidents who serve as the leaders of particular parties. I think deep down most people have a sense of this.
It's time to discuss term limits, IMO.
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One point for context is useful here. At one point, the Response referred to the "legal realists." That refers to an American legal tradition called American Legal Realism (ALR). Edward Levy laid out in his short 1949 book how this works in practice and why it is necessary for a democracy. The idea behind it is that as society and technology change, judges interpret ambiguous laws to reflect those changes. For the most part, Republicans falsely believe and argue that the only proper way to interpret the Constitution is to look at the original text. Their legal authorities refer to things like originalism or textualism, wherein technological and natural social changes are mostly irrelevant.
The modern Republican Party generally opposes the ALR tradition of constitutional interpretation, although on some occasions, it is arguably practicing its own version of ALR. One might call it reverse ALR. Specifically, the Republican version of ALR relies on its ideology and morals to oppose social changes it dislikes, e.g., laws allowing abortion, same-sex marriage, consumer protections and equal rights for minorities.
Acknowledgement: The Response is by PD. My sincere thanks to him for taking the time and effort to comment here.
Questions:
1. Is it reasonable to argue that Republican judges on the Supreme Court are more driven by political and religious ideology than Democratic judges, which tend to operate in the framework of ALR?
2. Should judges adapt to account for social or technological changes when the law is ambiguous and the original intent of the Founders or congresses who write laws cannot be authoritatively determined?
3. Is it time to discuss term limits for federal judges? People in Congress?
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