Solum on "Swing Votes" and "the Virtue of Justice"

In addition to running the invaluable Legal Theory Blog, Professor Larry Solum has for several years been exploring and fleshing out the role of virtue ethics and aretaic theory in constitutional law. (Click here for "Virtue Jurisprudence: A Virtue-Centered Theory of Judging", and here for "Theorizing About Constitutional Interpretation: The Aretaic Turn").

Not surprisingly, then, one of Professor Solum's recent posts provide a welcome break from the usual gouge-out-the-eyes sameness that is "End of the Term" commentary about the Supreme Court and its work (e.g., "Justice O'Connor: Swing Vote"; "Court Divided on Hot-Button Issues"; "Scalia Cranky About O'Connorism," etc.). In "Swing Votes, Making Things Come Out Right, and the Virtue of Justice" (here), Solum takes up "two interacting phenomena. First, we have a closely divided court, and the division is especially prominent on a variety of key constitutional issues, including unenumerated rights and federalism. Second, the behavior of the Justices seems consistent with the theory that the Justices vote to produce the 'fair' or 'best' outcome, feeling only loosely constrained by the rules laid down--e.g. their own precedents, the constitutional text, statutory language, and so forth." And, with respect to these (relatively uncontroversial) observations, Solum suggests "that the interaction of these two phenomena is much more problematic than either would be by itself." That is, "(1) a closely divided court that is (2) results oriented poses a greater threat to the rule of law than would either phenomena standing alone."

In Solum's view, there *is* a solution to this problem, or "threat": "The key to the solution is rejection of the realist dogma that judges must be ideological. To put this point differently, we need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility." The key to realizing this possibility, Solum suggests, is "good judicial character, and especially . . . the virtue of justice--the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges' own perceptions of what the law should be."

Solum has developed his theory of judging in considerable detail. The theory might be of interest to Mirror of Justice readers and bloggers, given the centrality -- or, at least, the importance -- of aretaic theory in the Catholic intellectual tradition.

Rick