Strengthening Constitutional Self-Government

No Left Turns

Roberts and "the mainstream"

Geoffrey Stone arrogates to himself the "right" to define the mainstream of American constitutional jurisprudence, which, given his position at the University of Chicago, is at least a semi-plausible claim. Are you surprised to learn that Clarence Thomas isn’t in the mainstream, but rather "at the far-right fringe of the bell curve?" Good thing, too, because the mainstream apparently carries justices who are a part of it to the left. Here’s Stone’s wishful thinking (at least that’s what I hope it is) about Roberts:

[L]ike many conservative appointees, there is every reason to believe that a Justice Roberts will gradually drift to the left, following the footsteps of Justices Harry Blackmun, Lewis Powell, John Paul Stevens, O’Connor, Anthony Kennedy and David Souter. Appointed as conservatives by Republican presidents, each of these justices evolved over time. Because they were not tethered to an inflexible ideology, they remained open-minded and continued to learn and to grow during their time on the court. And what they learned was important.

Justices are continually exposed to the injustices that exist in American society and to the effects of those injustices on real people. As they come more fully to understand these realities, and as they come to an ever-deeper appreciation of the unique role of the Supreme Court in our constitutional system, they become better, more compassionate justices. This, too, will happen to John Roberts.

The process Stone describes more aptly applies to representatives, who ought, to some degree at least, to identify with and feel for their constituents. The whole point of giving judges lifetime appointments is to give them the capacity for a kind of judicious distance, so that they apply the law impartially, without respect to persons. Yes, there’s a role for equitable jurisprudence, but that takes us toward Clarence Thomas and a conception of natural law, rather than toward unlimited and illimitable compassion.

Discussions - 3 Comments

Stone’s audacious assertion is that as Supreme Court justices hear more cases and see more inequality, a natural and desired result is that "they become better, more compassionate justices".

I’m not a lawyer, yet even I can see the jarring illogic of this statement. Showing compassion is taking sides, not interpreting the law, and we hire our judges to interpret law, not take sides.

Practically since time immemorial, justice has been portrayed as a blindfolded lady with scales and sword. The symbolism is quite obvious: a justice is honor bound to pass judgement (the coercive force of the sword), but in a non-biased way (scales and blindfold).

Consider for a moment the meaning of the word compassion: "Deep awareness of the suffering of another coupled with the wish to relieve it" (American Heritage Electronic Dictionary, 3rd edition). Compassion, then, is an inherently subjective trait. Both sides in a court case may have suffered; which side’s suffering should the judge wish to relieve?

Consider capital punishment: the crime victim and his family have undoubtedly suffered, yet many would also argue that putting the perpetrator to death causes unconscionable suffering in return. Thus, compassion gets a judge nowhere in his duty to reach a just decision.

Instead, the justice’s duty (especially at the Supreme Court level) is to apply and interpret law without passion (i.e., DIS-passionately as opposed to COM-passionately).

The so-called "French Fry Case" gives us a pretty good idea as to what type of judge John Roberts is at present. Without going into a ton of detail (since this case has been written about extensively elsewhere), this case involved the Washington Metro against a 12 year old girl. The Metro has a policy that food and drink are not allowed. When the girl ate a French fry, she was arrested and restrained. She sued the Metro. Judge Roberts ruled against her, basically conceding that while the Metro’s policies may have been off-base, they were not illegal. The implication of this is that it’s up to elected representatives to change the Metro’s policies IF THEY SO DECIDE AND IF THE PUBLIC PRESSURES THEM TO DO SO. Compassion is not germane to the decision. If confirmed, my fervent wish is for Roberts to retain this style of judging.

Compassion is a commendable character trait. On balance, compassion is a positive force in human affairs. But it doesn’t belong on the gavel side of a courtroom bench. For all I know, Geoffrey Stone is an excellent human being and an exemplary professor in any number of areas, but I believe he is badly mistaken in his view that a good SCOTUS justice employs compassion on the job.

I really like how the professor says, "each of these justices evolved over time." As if us poor, stupid conservatives are a bunch of children that just need to "see the light" of liberalism.

I would argue that in most cases the exact opposite is true. Most people through college associate themselves with a liberal ideology. As they grow older, and grow up, this usually changes into a more conservative or rational way of thinking. Of course, maybe that explains the good professor’s inability to understand this...he hasn’t been off a college campus in his adult life.

On top of that, he misses the point as to why Souter, O’Conner, Kennedy, et al are liberal judges...the Republican presidents screwed up when they appointed them and didn’t do their homework. Even my hero Ronald Reagan!

Kennedy, Stevens, and Souter did not seem very compassionate when they allowed the city of New London to sell out the property rights of its citizens to Pfizer.

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