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Larry Lessig's Fidelity and Constraint wonderfully restates the dilemma of judges since judging began. Should justice be blind like the classical representation? Or should justice look at the unique facts of the case and reach wise decisions as Solomon did? Sometimes we want one and sometimes we want the other. And almost never in a consistent fashion.
At the Supreme Court, this divide breaks down between what Lessig calls "fidelity to meaning" and "fidelity to role." (Richard Fallon's new book on Law and Legitimacy in the Supreme Court uses "legal legitimacy" and "sociological legitimacy" to do similar work.) The idea is that a judge in constitutional cases strives to interpret the law correctly, but she sometimes must bend her views to conform to some understanding of how the public will perceive the decision. The Chief Justice hears this argument a lot these days. He should rule a certain way in some cases, no matter what he thinks the law is, because to do otherwise will threaten the Court's legitimacy. There are some instances in which this recommendation may be valid, but when?
One of my takeaways from Fidelity and Constraint is that fidelity to role is much harder to assess than fidelity to meaning. When lawyers look at the Supreme Court opinion, they are usually able to evaluate the quality of the work. There is a consensus about the relevant sources and methods of interpretation. most of the time. To the extent that this is not the case, there is an internal logic to a method that lets us test the soundness of the conclusion.
When a judge issues a tortured explanation for a decision for some pragmatic judgment, I don't think that we have useful tools to determine whether that was the right call. For instance, Lessig says that Chief Justice Marshall did the right thing in Marbury v. Madison by concocting a bogus statutory interpretation to avoid ordering the President to do something that he would not do. Almost everyone agrees with this, but how do we know that's right? We can rely on only counterfactual thinking. If the Court had gone with fidelity to meaning instead of fidelity to role, then some awful consequences would have followed for the rule of law. This is, to say the least, not rigorous thinking
Indeed, I can think of only one scholarly work that focuses carefully on fidelity to role--Robert Cover's Justice Accused. Cover was interested on how judges upheld pro-slavery policies because they believed that their role as judges required that outcome. There were different interpretative moves that judges made to accomplish this that did sometimes engage in counterfactual thinking. Were they doing the right thing? Did they understand their role correctly? These are hard questions that explain why Cover's book is still a classic.
Thus, I was disappointed that Lessig said virtually nothing about slavery. (Though, to be fair, most constitutional law books suffer from the same defect.) He briefly describes Dred Scott as a "blunder." Why? Was Chief Justice Taney not being faithful to the Constitution's meaning? Or was the problem that he should have pulled his punches because he should have known that the public would respond badly to the ruling. What about Prigg v. Pennsylvania? Justice Story's opinion upholding the legality of the Fugitive Slave Act of 1793 could be understood as the kind of "translation" that Lessig praises in other cases--the Court was adapting the text to new facts and circumstances. Cover did not view Prigg in this way. He saw the decision as a compromise more akin to fidelity to role. Is that right? And if so, did the Court correct construe what fidelity to role required?
Fidelity to role can easily swallow fidelity to meaning without a better understanding of what fidelity to role is. Gerald Gunther said much the same about Bickel's theory of passive virtues, which was in part a theory of fidelity to role. Lessig's reframing of the problem creates hope for a solution.