Deep waters, revisited

[Some notes from my comments to the judges at the Second Circuit Judicial Conference:  notes, it bears emphasis, intended to engender discussion and not to answer the question posed.  I am happy to report that the discussion was thoughtful and energetic.]

In the wake of SCOTUS’s then- and still-controversial decision in Roe v. Wade (January 1973) and of the late John Ely’s famous critique of the decision just three months later in the pages of the Yale Law Journal (April 1973), an old, tired debate erupted with great ferocity both inside the legal academy and outside it—a debate that even now, thirty-seven years later, continues with great ferocity—about what it means, or should mean, to “interpret” the Constitution of the United States.

Assume, for purposes of discussion, that you have a confident answer to that question—or that, at least, you have an answer to that question to which you are, confidently or not, committed.

Now, consider two hypotheticals:

1.  It is sixty years ago:  June 3, 1950.  You are a judge in a constitutional case in which it is argued that racially segregated public schooling violates the Fourteenth Amendment.  According to what you judge to be the better interpretation of the Fourteenth Amendment, such schooling does not violate the Amendment.  As a matter of deep moral and/or religious conviction, however, you are convinced that such schooling is not merely unwise, but constitutes a grievous assault—a sinful assault, if you will—on the inherent dignity of Americans of African ancestry.

2.  It is ten years ago: June 3, 2000.  You are a judge in a constitutional case in which it is argued that executing persons for crimes committed when they were children violates the Eighth Amendment.  According to what you judge to be the better interpretation of the Eighth Amendment, such executions do not violate the Amendment.  As a matter of deep moral and/or religious conviction, however, you are convinced that such executions are not merely unwise, but constitute a grievous assault—a sinful assault—on the inherent dignity of those who are executed.

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Might it be legitimate in either or both cases for you to pretend that according to what you judge to be the better interpretation of the Amendment, the policy at issue is unconstitutional?

“Legitimate” according to whose criteria of legitimacy?  According to your own criteria of legitimacy, of course:  You are the one who has to decide whether it might be legitimate in either or both cases for you to pretend that according to what you judge to be the better interpretation of the Amendment, the policy at issue is unconstitutional.

In thinking about the question, listen to Australian legal philosopher Jeffrey Goldsworthy, who has written that "[j]udges may sometimes be morally justified in lying about what they are doing, but in a democratic and tolerably just society, only in rare and exceptional circumstances."  Sometimes morally justified.  Even in a democratic and tolerably just society.  But only in rare and exceptional circumstances.

Listen also to University of Connecticut legal scholar Rick Kay, who had the following to say:

[I]n theory, a judge who values constitutionalism may still sometimes depart from constitutional norms and (just because he/she believes in constitutional values) conceal that departure.  But a judge committed to constitutionalism will understand the enormous danger of that course of action for at least three reasons.

 

1) The judge understands that his/her own priorities may be exactly the thing which long-term constitutions properly exclude.  He/she will have an acute sense of the fallibility of ad hoc judgments.

 

2) He/she knows that his/her deception will not be perfectly successful and thus will set a precedent of repeated adventures of the same kind.  Or it will be converted into evidence for some new theory of "interpretation."

 

3) The decision will necessarily have ripple effects in the adjudication of other cases invoking the same or related rules.  If in those cases stepping out is not the right thing to do, either legally or morally, the risk of unjustifiable decisions is increased.

 

A sincerely constitutionalist judge, therefore, will work under a near-irrebuttable presumption that his/her moral convictions are to be subordinated to the constitutional norm.

Notice that although both Professor Goldsworthy and Professor Kay are understandably  wary—and, I’m sure you’ll agree, admirably wary—about judges engaging in the sort of pretence with which my question to you this morning is concerned, neither of them says:  “No!  Of course not!  Never!”

 Again, according to your own criteria of legitimacy—your hopefully thoughtful, admirable criteria of legitimacy—might it be legitimate, in either or both cases, for you to pretend that according to what you judge to be the better interpretation of the Amendment, the policy at issue is unconstitutional?

 A final comment:  Isn’t it clear, against the background of the question I’ve asked, that in thinking about the matter of proper judicial role in constitutional decisionmaking, the question of what it means, or should mean, to “interpret” the Constitution—as large as that question has loomed since 1973, and as important as that question obviously is—doesn’t begin to exhaust the issues that require our careful attention?