Monday, May 18, 2009

Know your Chief Justice

Here is an interesting, and thorough, read about Chief Justice John Roberts. The line that most stuck out to me was this, "In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."

Yikes. And he's only 54. He could stay on the bench for a long, long time.


Bob S. said...


I guess the question that I would have is he wrong for siding with the folks that he does?

Should the cases be decided on emotional basis or legal?

That is what worries me about Obama's view on his appointment, that he wants someone with empathy. Wouldn't you rather have someone deciding on the facts of the law?

S said...

The trend that's discouraging to me in Justice Roberts' decision-making is his deference to the party to the case who is the authority figure. And, yes, I believe he is quite often wrong, at least in the criminal cases. Even I wouldn't vote with the defendant in every single case. You wouldn't trust a judge who always voted for the defense, would you?

I think Obama is absolutely correct to state that empathy should be a requirement for the job. Empathy isn't code for ignoring the law. A judge with empathy simply has a better framework for applying the law to the facts of the particular case.

An awful lot of bad 4th Amendment law has been made by judges who know THEY won't be targeted by the police tactics they're approving, for example. Because they couldn't empathize with scared young black kids living in the Chicago projects, we have a Supreme Court case that says running away when you see a cop gives the cop probable cause to stop you. Well, there are some parts of Chicago where the only reasonable thing to do when you see a cop car coming, lights on, is to run like hell because you know something bad, probably involving gunfire, is about to go down. Some of the 4th Amendment cases on when a reasonable person would feel free to leave are just laughably out-of-touch with reality.

I think trying to pretend that we can make legal decisions in some cold, calculating way, totally removed from human emotions, leads to really bad legal decisions.

BellsforStacy said...

But I thought ... and I hope I don't sound argumentative, that the law is reason free from passion?

Which to me sort of implies that while our emotions are valid and serve a purpose, they are kind of counterproductive when trying to enforce laws across a population.

And what's the difference between siding with the prosecution, just because it's the prosecution, and picking a woman justice, just because she's a woman?

Meryl said...

(Wow--your blog is sexy all of a sudden!)

I would be interested to see stats on how often he votes with the party that won below. Given the nature of appellate courts (reviewing rather than factfinding) the default position is to affirm the court below, so I think that statistic would better show whether he's actively deferring to "the authority figure" (e.g. if he's siding with them, even if he has to reverse to do so).

That all being said, I do think Roberts has made some disturbing calls in the criminal realm, at least.

And the idea that law is "reason free from passion" is kind of like the idea that CSI is really how crime labs work.

Although it's a nice thought, I've never had a case that was so black and white that it could be decided in a purely logical fashion. The experiences a judge brings to the case always play a role, even with very good judges who try to apply the law as neutrally as possible. Hence why it's important to have diversity on the bench.

S said...

First, to address Meryl's first paragraph, this is not a matter of the CJ simply affirming lower courts. In fact, in at least one case, he voted with the group who went out of their way not to show the proper deference to the state court.

Empathy means "identification with and understanding of another's situation, feelings, and motives." I think this is an excellent, even necessary, quality for a good judge. I frankly have no clue why seeking out this quality in a judge concerns people. We're not talking about judges being overtaken by some grand passion that prevents them from thinking clearly. We're just talking about them being able to acknowledge, understand, and account for the real human elements that shape every single case that comes before them.

There is no perfectly reasonable, always rational, completely logical state of law that would be sort of the legal equivalent of nirvana. Reason doesn't exist in a vacuum. There isn't ever one and only one "right" answer that could be arrived at if we just had judges who were successful at ignoring all human emotion and experience.

Throughout most areas of law, contracts, torts, criminal law, etc., there is the concept of the reasonable person. What would the reasonable person do? I'm sure that Bob's idea of this mythical reasonable person would vary slightly from Stacy's which would vary from mine. We, as judges, would have to meld our separate ideas together to find our consensus on the reasonable person standard. For the Supreme Court to achieve the best, most rounded, most neutral, idea of the reasonable man, they need a diversity of opinions and experience. And they need empathy so they can make up for what diversity they lack. (There are only 9 of them, after all.)

And, no, I don't agree that always siding with the prosecution over the defense is at all comparable to my saying that the next justice needs to be a woman. There are at least a dozen women who are well-qualified to sit on the bench. Just as there are at least a dozen men. There isn't one "most academically qualified" person. Since there is a good pool of top level candidates, I say one of those dozen women should be the choice because any of those women can bring a dimension to the court that none of the men can. I would not say that for every Supreme Court pick. I'm saying it for this one.

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