by Matt Barr

Do justice or do democracy?

Beneath the innuendo, fraudulent polemicizing and low grade political theater of the Alito hearings was the current of an issue that should have been at the forefront, but for the World's Greatest Deliberative Body™ being more concerned about bankrolling their next campaigns. That issue involves the role of the courts, beyond even the standard liberal/conservative "active liberty"/federalism labels that are tossed around themselves to avoid substantive discussion. Dahlia Lithwick, whether she meant to or not, sums it up best in her clever Please Don't Feed the Federalists piece:

[A] central myth about the federalist is that he seeks only to promote the interests of white men, big businesses, and the unborn; and that he is wholly unconcerned about "giving a fair shake to the little guy." The federalists you see before you cannot not be so readily caricatured. They simply don't accept the proposition that the courts exist to elevate the interests of the little guy above everyone else.

Professor Bainbridge snips out a bit in the Reality-Based Community blog that seems to illustrate this. Bainbridge (quoting Michael O'Hare at the beginning):

Alito:

... has is a piece missing, conspicuously, radiantly, displaying the absence of any sense of, well, justice. Not a case came up for discussion in which he registered that one or another outcome was just wrong, outrageous to a sense of decency, or to him. ... the man appears to be completely comfortable dealing with frightful social wrongs by moving the issue down the hall to another office.

This is, I think, a superb example of the basic divide between the liberal and conservative views of the judicial role. O'Hare wants judges to effect social justice, which O'Hare presumably would prefer that they define to accord with his own sense of what is just....

In contrast, I think judges have no right to impose their own personal policy preferences. Instead, judges are on the bench to enforce the rule of law. Supreme Court Justice Harlan made this point quite well when he criticized what he called "a current mistaken view of the Constitution and the constitutional function of this Court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional 'principle,' and that this Court should 'take the lead' in promoting reform when other branches of government fail to act"

To explore this, you could ask a slightly different question, which a commenter in this open thread on Volokh did. The commenter is out to spring a trap on an originalist, of which I am not one, but I engaged him anyway (unsuccessfully, in the end, as you will see; that is, he was right). I'll rephrase the general question as this: Should the Court, faced with a clearly absurd and unjust result not otherwise unconstitutional, rule the just and non-absurd way(*)?

I think if any one of us, liberal, conservative, libertarian, Martian, considers this question thoughtfully and answers it truthfully, most of us will say that the court should do justice and avoid absurdity. But that's why this is such a remarkable hypothetical to explore one's own philosophy of constitutional (and other) jurisprudence. Here was the question, edited to avoid difficult constitutional law concepts:

Let's suppose a state statute enacted shortly before the 14th Amendment prohibits women from practicing law, the rationale being that women are physically unsuited to the demands of the legal profession. Let's suppose that, shortly after the 14th Amendment is enacted, the Supreme Court accepts this rationale as a "rational basis" and upholds the statute from a 14th Amendment challenge.... Now supposing the same statute is the subject of a 14th Amendment challenge today and assume there is no federal statutory law that applies to this situation. Is SCOTUS bound to uphold the statute on an originalist view? Would stating that the original rationale, that women were physically unsuited to practicing law, was simply wrong as a factual matter and therefore the statute fails the rational basis test be a departure from original intent?

The question assumes, as it says in a bit I didn't quote, that gender classifications in law must be supported by a "rational basis," which is, as applied by the courts, a low bar; if the legislature could reasonably have believed its basis for passing the law, it should stand. (Contrast "strict scrutiny," such as for race-based classifications, a much more difficult standard.)

The question gets to a situation where original intent may have been, if arguable, at least rationally supported, but subsequently the rational basis by which the law was passed is known to be false; what does the originalist do?

I said, and I will not blockquote myself since I'll probably be futzing with my wording, that the problem with the hypothetical is that there's simply no way to escape the fact that that law would have been democratically repealed by now. Cornellian considered this a dodge, as I expected he would, but my point, as I tried to make clear later, is that in our republic, the people are perfectly capable of democratically changing their bad laws, and we shouldn't be in such a hurry to have the courts strike them down. Given the improved attitudes everyone has as to gender equality since the passage of the 14th Amendment, the interest of customers of legal services to have as much talent available to them as possible, and the lucrative and high-prestige nature of law practice, this law simply would not still be on the books in 2006.

The originalist view, though, as counterintuitive and frustrating as it is, would be that the people who ratified and then had to implement the amendment would surely have changed whatever law they thought didn't square with it, and if they didn't that's powerful evidence the law doesn't violate the amendment. We've seen this argument before: Shortly after the ratification of the First Amendment, Congress opened its session with a prayer from an official Congressional chaplain paid out of the federal treasury. When a Nebraska legislator went to court to have his body's practice of a chaplain leading the body in prayer declared unconstitutional under the First Amendment, this originalist argument prevailed. (See link above for links.)

So even if it's clear, I said, that the basis on which the law was passed is simply factually incorrect, the Constitution of the United States does not forbid states from enacting stupid laws based on factual inaccuracies.

The reply:

So a Supreme Court decision crystallizes for all time, not just a particular interpretation, but also the factual conclusions it reached en route to that decision? I recall there being a Pennsylvania statute that prohibited women from working after sundown (no similar prohibition for men) that was around as late as the 1960's so I can make my hypo a great deal more plausible just by adjusting the time frame slightly.

No, I said. If a stupid law can be repealed, the Supreme Court declaring it consonant with the Constitution doesn't crystallize it for all time. The Supreme Court declaring something unconstitutional usually crystallizes it for all time, which is great when it comes to actually unconstitutional things, but not so great when you have policy differences that are amenable to democratic change -- and are in fact trending toward democratic change -- say, for example, the juvenile death penalty.

I did not say, but do now, that the Pennsylvania law referred to no longer being on the books would seem to me to be evidence in my favor, not his; though I suppose a court might have declared it unconstitutional, in which case not.

I attempt to recast the hypothetical to dull the impetus there would be for democratic change. Say there was a law prohibiting men from eating radishes because radishes were believed to cause prostate cancer, then it's proven conclusively that radishes have nothing to do with prostate cancer. Here we have a hypothetical law that there will be less impetus for democratic change than a law prohibiting half the workforce from engaging in a lucrative profession. Now we find someone, somewhere who likes radishes -- or maybe a radish farmer -- who sues to have the law overturned because the assumed rational basis is proven to be false.

To be honest with you, my answer is twofold. First, if it were me, I would say "go see your state assemblyman. The political branches are the ones who should be repealing your laws. I'm smart, clever and good looking, but not all judges are like me, and believe me, you don't want us striking down laws that were perfectly valid when enacted, with as far as I can tell no intent to invidiously discriminate against anybody. Next thing you know you'll be giving a bunch of judges veto power over laws they don't like, and believe me, you'll come across some who will use it."

But second, I'm sure the court would strike down the law. I'm doubly sure it would strike down the women practicing law law, but as I say I don't think it would get that far. Cornellian is right, in other words, originalism I don't think can practically be a recourse for a law that's obviously based on falsities.

My answer is judicial restraint. It doesn't "do justice," it does democracy. This doesn't play well on TV, and is hard to justify to constituents whose votes you want to re-elect you. But it is, I submit, how we ought to agree we want our courts to act. Give them the power to strike down absurd, unjust laws and soon, in some case, there will be profound disagreement on what's absurd and what's unjust. And those kinds of quarrels should be fought out in the elected branches.

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