Balkinization  

Tuesday, March 27, 2007

"The Seach for Objectivity in Constitutional Law"

Brian Tamanaha

This is an era of avowed sophistication in the Supreme Court. To talk, as Justice Roberts did, of simply [calling balls and strikes like an umpire], now seems almost like dredging up an antiquity. Justices may always have been sufficiently sophisticated to know that the judicial process is not that simple, that in the constitutional field the process is primarily political, not judicial; but it is only recently that they have admitted as much and have begun to discuss publicly their methods of deciding cases.

One can hardly blame the current bench for indulging in this sort of self-analysis, so obviously designed to minimize the significance of ‘personal predilections.”…

Thus, the Supreme Court goes galloping off in search of objectivity. This approach is admittedly a far cry from the deceptiveness, self-induced or not, of the mechanistic approach. But will it produce anything more satisfactory either to the justices themselves or to the public?

So began George Braden’s 1948 essay in the Yale Law Journal, “The Search for Objectivity in Constitutional Law” [although I have injected a paraphrase of the current Justice Roberts to replace Braden’s paraphrase of the earlier Justice Roberts: “laying a statute alongside an article of the Constitution to see if the former squares with the latter”].

Braden proceeded to articulate and take apart the three main theories of objectivity in constitutional interpretation circulating at the time: Stone’s “reason” based approach that focuses on the protection of “discrete and insular minorities”; Frankfurter’s “consensus of the community” approach; and Black’s “specific words” and “original purpose” approach.

In response to Stone, Braden pointed out that choices must be made as to which minorities qualify for protection, and how much protection they will get. “Chief Justice Stone’s philosophy is so abstract that it contains virtually nothing to show how it works in individual cases.”

In response to Frankfurter, Braden had a long list of questions: “What is the consensus? Is it qualitative or quantitative? Is it nationwide or broken into statewide segments?....What is it a consensus of? Abstract notions of fair play and justice?....And how does a justice, who knows what he is looking for, find it? By a Gallup Poll? By editorials in leading papers?....”

In response to Black, Braden articulated the “many technical difficulties”, including issues about the accuracy of historical accounts, how to deal with social change or with application to situations not originally anticipated, and more.

Braden concluded his exploration:

Here is a great quantity of sound and fury signifying what? Two present members of the Court produce theories of constitutional interpretation of government limitations designed to control themselves and their brethren. Each theory collapses, on analysis, into little more than a front for policy making….

There is no objectivity in constitutional law because there are no absolutes. Every constitutional question involves a weighing of competing values. Some of these values are held by virtually everyone, others by fewer people. Supreme Court justices likewise hold values. The more widely held are the values in society, the more likely the Supreme Court will hold them; the more controversial the values, the more likely the Supreme Court is to divide over them….

Hence the justice who wants to tell the world how he decides cases must….say: “This is what I believe is important in our civilization and I shall do all I can to preserve it.” And forthwith set forth his creed. If this is too shocking to society or if the many [structural and sociological] limitations on the Court’s power are not in themselves believed to be sufficient to restrain the imposition of “idiosyncratic” values, then society must take away the Court’s power. There is no middle ground.

Braden’s essay was written before the Warren Court, before Brown and Roe and Bakke, before Bush v. Gore. The quest for objectivity and judicial restraint in Constitutional interpretation has gained urgency in the six decades since he wrote the essay. Thousands of pages of law review articles and books have been dedicated to the subject. Beneath the avalanche of words, however, the basic alternatives have not changed much (although the pragmatic/purposive approach has taken a seat at the table to supplement the social consensus approach).

We must answer Braden’s starting question about the production of a satisfactory theory of objectivity with a resounding: “No.”

Are we fated to remain stuck in place on this issue?

Comments:

So, postmodernism was insinuated in Constitutional studies already at the height of modernism in the forties? Interesting - really, as a cultural phenomenon beyond the law itself.

I guess y'all do pay attention to science and philosophy.
 

"Are we fated to remain stuck in place on this issue?"

Yeah, pretty much; The non-lawyer community can't accept a judiciary which both rejects objectivity, AND is unelected, because that combination renders democracy a joke. While the legal community can't bring itself to believe that objectivity is possible, because it would then have no excuse not to aspire to it, and finds becoming (Again?) "mere umpires" too degrading.

The two ways this could be resolved are by the public finally agreeing that judicial objectivity is impossible, and responding by abolishing judicial tenure, and subjecting judges to the elections anybody holding a "political" position has to face in a democracy.

Or the legal community could decide that being an "umpire" isn't really that degraded a status, and suddenly find that objectivity isn't impossible after all.
 

Brett:

The two ways this could be resolved are by the public finally agreeing that judicial objectivity is impossible, ...

Send 'em all to law school. That cured my of my delusions.

Cheers,
 

Brett:

Or the legal community could decide that being an "umpire" isn't really that degraded a status, and suddenly find that objectivity isn't impossible after all.

You obviously don't know much about other legal systems. Those in France, for instance, allow judges to call their own wisnesses and ask their own facts.

All in all, the judiciary in the United States does shy away from intervention, considerably more than in many places, and I think you should be happy with what you've got, considering that judges are irrevocably human (and thankfully so, as well, I should add).

"To err is human. To really foul things up, you need a computer."

There is wisdom there, Brett. Think about it.

Cheers,
 

Aside from the typos, "facts" should be "questions". And I haven't even had a drop yet..... ;-)

Cheers,
 

Sure, judges are only human. So are baseball umpires. Maybe you'd like to think about THAT.

Humans will never be capable of perfect objectivity, but who's going to more closely approximate it? Somebody who's at least trying, or somebody who rejects the very posiblity?
 

arne:

Send 'em all to law school. That cured my of my delusions.

:::chuckle:::

Did you ever practice law or did you run screaming from the halls of law school to practice an honest profession like a couple of my friends?
 

"Bart" DePalma [to me]:

Did you ever practice law or did you run screaming from the halls of law school to practice an honest profession like a couple of my friends?

I'd consider telling you again if I thought it would actually make a difference. But I'd also note that someone with even minimal competency and two brain cells wouldn't have to ask ... again.

You know, "Bart", this is very emblematic of your problem here. You sent way too much time talking and way too little time listenting.

Cheers,


Cheers,
 

Brett:

Somebody who's at least trying, or somebody who rejects the very posiblity?...

There's such a thing as "trying too hard". You might succeed in convincing yourself (particularly if you're some bright luminary in your own mind and thus not susceptible to the foibles and limitations of the rest of us mortals) that you're winning. Recognising our limitations and understanding them is sometimes the most honest way to proceed. A faux "objectivity" can be more damaging for its "certainty"; it will not admit to error (kind of like Dubya and Rice and Cheney).

Cheers,
 

I find television very educating. Every time somebody turns on the set, I go into the other room and read a book.
Agen Judi Online Terpercaya
 

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