RSS Feed
Law Above All Else, Not to the Exclusion of All Else
No religion, gender or ethnicity disqualifies a person from becoming a Supreme Court justice, but how should a particular judge's life experiences -- including faith, gender or ethnicity -- inform his or her judicial rulings?
Jurists interpret the law, which is their job. To that end, the law itself must be their supreme authority. But to the extent that all interpretation is done by people, and people's thinking is always shaped by their experiences, everything from gender and religion to their family life and history will shape what they think the law "really says".
While there may be no room for justices actively looking beyond the law to make/interpret law, there is no way to stand outside one's self and render decisions either. And it's simply silly to pretend otherwise. It's actually funny that we are still having this tired modernist debate about objectivity in our post-modern world. What we need instead is a healthy conversation about how to admit that our lives always shape our understanding of what's "really real" and "really true", without allowing that knowledge to make us cynical about words like reality and truth.
In our current political climate, too often those who acknowledge how our lives influence our understanding of what is right, legal or true do become cynical about those terms. That simply fuels the fires of those who still hide behind "what the law says", never admitting that their understanding is as culturally determined as the liberals they most oppose. That pretty much sums up the fight unfolding right now in Judge Sotomayor's confirmation hearing.
What is called for instead is a measure of discipline in which each justice does their best to honestly struggle with the legal tradition they have inherited, admitting as they do so, that being human, we are all predisposed to see things as we would like them to be. That's just the way things are. Each side should also admit that the more comfortable one is with the awareness that our personal experiences shape our understanding of what the law says, the more cautious one must be in allowing that fact to become an excuse for consciously manipulating the law.
Ultimately, this is not a debate about how much influence any part of a jurist's life their lived experience exerts. It's about the honesty to admit that it happens (hear that Justice Scalia?), and the modesty to not overplay the value of such influence (hear that future Justice Sotomayor?).
By
Brad Hirschfield
|
July 14, 2009; 12:53 PM ET
Share This: 
Technorati
| Del.icio.us | Digg | Facebook
Previous: Personal Values Influence Law And Vice-Versa |
Next: Factors inform but shouldn't determine decisions
Posted by: howlongsitbeen | July 15, 2009 2:37 PM
Report Offensive Comment
The comments to this entry are closed.
Rabbi,
The following comments are offered constructively and charitably:
"Jurists interpret the law, which is their job."
Well... that's one theory. In fact, your cavalier assertion belies a long-running and still-dynamic debate within the realm of legal philosophy as to the proper role of judges. The American juridical code is indebted both to codified law, a la the Romans, and British-style common law (in which judges DO "make" law). It is therefore misleading and inaccurate to declare so peremptorily, without qualification, that jurists (simply) interpret the law.
Extraordinarily specific laws that need only be 'applied' to particular circumstances are exceedingly rare, insofar as they do not make good public policy. By their nature, they are too narrow. On the other hand, laws that are too broad are equally unhelpful, as their proper interpretation becomes the subject of limitless dispute. And so a balance is struck, legislatively, when crafting said statutes, but it remains unresolved whether judges, in deciding cases, merely interpret the pre-existing law, or actually create new law (we Americans tend to cringe at this latter characterization).
For example, let us say that the city of New York bans "motor vehicles" in Central Park. Let us also say that a senior citizen riding a motorized personal mobility vehicle is stopped and informed that s/he cannot use said transportation device in the park. The case goes to court, and the judge must decide whether or not a motorized mobility device counts as a "motor vehicle." One way of describing the jurist's role is to say that s/he merely interprets the original intent of the bill's authors. Another might say that the bill, as written, was insufficiently clear, and thus that s/he will issue a ruling that distills the statute and "makes" a law prohibiting motorized bicycles and 4-wheelers, but that allows Rascals and Segways.