lawless courts & revisionist history

[Randy Barnett]

Howard Gilman raises an interesting issue and I have been pondering it.  I
think there are at least three, and possibly more, reasons for this attitude
among lawyers that may indeed be a product of a disciplinary norm (apart
from the one he suggests).

First, we are trained as advocates to be respectful to courts.  Even when
they are really doing bad things to us.  Indeed, when I was a prosecutor I
*acted* respectfully even towards judges I knew were on the take.  I
remember taking satisfaction in sitting in federal court as one of them was
prosecuted successfully for corruption.  But during a recess he walked by
and said "Hello Randy" and I instinctively said, "Hello Judge" though he was
no longer a judge, had disgraced the robe, and I had come to witness his
disgrace.  So ingrained is the respectful attitude for judges by practicing
lawyers.

Second, and more importantly, I teach my students that the "political"
explanation is the last inference they should reach for because, as
advocates, they should be finding legal explanations or arguments to
advance.  In a way, it is similar to how some materialist scientists view
creationism.  They think that "god made it" is simply not a scientific
explanation, even it if were true.  (I offer this analogy by way of
explanation, not to open the argument as to whether "God made it" is or is
not a potential scientific explanation.)  They did it because of politics is
simply not a legal argument.

Third, and most importantly, in the absence of evidence that judges did have
a bad motive for deciding a case, when there is a reasonable argument to be
made on behalf of their decision, I would use what my former colleague Dale
Nance has called a "presumption of civility":  We ought not presume without
evidence that a fellow citizen has violated his or her moral duties to the
community.

But I should also add that there is "political" and there is political.  I
also teach my students that there are contending judicial philosophies that
reflect underlying political theories that are often at work, especially in
Supreme Court decisions.  In my view, and that of many other lawyers, this
very significant sense of "political" is an important part of what
constitutes a legal understanding.  You need to know this to predict courts
as much as you need to know doctrine, perhaps *with constitutional issues*
much more than you need to know doctrine.  I think your previous posts have
pursued this avenue and I am largely in sympathy with them.  I would also
have characterized them as "charitable" towards the courts as I am using the
term.  I am not at all adverse to "court bashing" if by that I mean
condemning and opposing judicial liberals for acting as judicial liberals or
judicial conservatives for acting as judicial conservatives (provided we
define what is meant by these terms).  I am very critical and even
disparaging about some courts, but that is not to impugn their motives.  I
think you made this point well in earlier posts.

But this sense of "political" is not the same as nakedly partisan and purely
result oriented.  As in, the conservatives wanted to pick Bush as President,
or conservatives decided Lopez and Morrison because they like guns and are
indifferent to rape.  Or the liberals on the Florida Supreme Court bent
Florida law completely out of shape because they wanted to hand the election
to Gore.  I realize this is a very crude sense of "political" and is not
usually what is meant by those legal academics who think courts act
"politically," but this is exactly the tone of some of the posts on this
list.  And it is to that I object.

Of course, it may in fact be true that a judge or justice acts as she does
solely for partisan reasons, because she was paid off, or because a Justice
is personal friends with a President.  I simply require evidence before I
reach that conclusion.  Strong disagreement with the outcome or reasoning of
a particular case, especially an unprecedented one decided under intense
time pressures, is not adequate evidence of such motives as far as I am
concerned.

Randy

__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
mailto:rbarnett at bu.edu
(617) 353-3099 (phone)
(617) 353-3077 (fax)
http://www.bu.edu/rbarnett
http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
http://www.LysanderSpooner.org (Lysander Spooner Website)


> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Howard Gillman
> Sent: Saturday, December 23, 2000 6:17 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: lawless courts & revisionist history
>
>
> Professor Barnett's generous and balanced response to Professor
> Katkin's post was a helpful clarification.  But I was struck by
> something he said at the end of the post, namely that one should
> only assume bad motives by the Supreme Court "if there are no
> other nonpartisan reasons that were sufficient to justify the
> Supreme Court's reversal," and that, in general, we should have
> "interpretive charity" toward courts when issues of possible bad
> faith are raised.
>
> This leads to a sincere question to the constitutional law
> professors on this list:  Is there agreement that, as a general
> matter, scholars should assume that the justices are motivated by
> good faith efforts to interpret the law rather than by political
> motivations?
>
> It seems to me that this blanket assumption may be inconsistent
> with a lot of political science research on the nature of Supreme
> Court decision-making.  I agree that much of this research is not
> necessarily inconsistent with an assumption of good faith; good
> faith legal interpretation may just so happen to almost always
> correspond to political preferences.  (This is, in fact, more or
> less my position.)  But at a minimum I would think that this
> empirical work puts some pressure on those who would assume that
> Supreme Court decisions are explainable primarily in legal rather
> than political terms, and so I don't understand why there should
> be a professional ethic against drawing attention to the politics
> that is (obviously always) at work.
>
> Is this assumption simply a by-product of a disciplinary division
> of labor?  Or does it have something to do with a belief that our
> institutions deserve to be characterized in their most favorable
> light, which means that unless we have crystal clear evidence of
> bad faith we should all be willing to assume that the Supremes
> were just doing the best they could under difficult circumstances?
>
> Howard Gillman
> USC Political Science
>
> At 05:39 PM 12/23/2000 -0500, you wrote:
> >Finally, Professor Katkin repeats the conclusion that "the
> Rehnquist Court acted . . . seemingly in order to hand the
> election to the candidate who the majority of sitting Justices
> would prefer to have name their successors."  This is a
> conclusion which can be reached only if there are no other
> nonpartisan reasons that were sufficient to justify the Supreme
> Court's reversal of the Florida Supreme Court to shut down the
> newly ordered statewide recount.  Since I think such reasons
> exist, however debatable they may be, I also think this
> conclusion is unwarranted.
> >
> >By the same token, I do not argue, that the Florida Four were
> trying to hand the election to Al Gore.  I do not have sufficient
> evidence for this type of charge.  As others on this list have
> noted, their decision could simply be a reflection of a different
> judicial philosophy, not partisan motives.  I simply think the
> same interpretive charity should be afforded the USSC that others
> think should be afforded the SCOFLA.
>