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Law and politics, legal legitimation division


The NYT published a strange op-ed by law professor and law student this morning, that reviewed a bunch of SCOTUS decisions involving statutory interpretation over the past three terms, and discovered that a lot of SCOTUS decisions reflect things other than the underlying political orientations of the justices.

This is an extreme straw man thesis — only very ignorant people and cynical cranks think that SCOTUS decisions only reflect the underlying political orientations of the justices.

Here’s what’s going on:

Judges have political commitments in the straightforward sense, since they are human beings, but they also have methodological commitments in the sense of preferences for certain methods for resolving legal disputes. Now here’s an important point: these methodological commitments are themselves fraught with underlying political implications as well. (BTW it’s quite possible to graduate from an American law school without ever encountering this idea). For example, which is the reactionary commitment and which is the progressive commitment in terms of the following methodological divide?

Which is more important, generally speaking: Maintaining decisional predictability across a wide range of cases, or doing substantive justice in the individual case?

Pretty easy to guess the answer isn’t it?

Now what happens when, in a particular case, there’s a collision between a judge’s political commitments and methodological commitments? Well that’s when things get tricky!

Let’s take a purely hypothetical example: Suppose your political commitments are reactionary, and your methodological commitments are therefore heavily weighted toward reactionary methods, such as originalism/textualism, while you generally dislike progressive legal methods ,such as reading the equal protection clause expansively, and not just in the narrow terms of what the framers of it may have been specifically thinking about back when it was adopted.

Now suppose there’s a presidential election between a reactionary candidate and a progressive candidate, the outcome of which is going to turn on which method you, a Supreme Court justice, is going to use to interpret the legal dispute between the two candidates regarding the outcome of the election.

Can you see the twist that’s coming to this plot? I bet you can! Well here it is anyway: For the reactionary candidate to win, in this particular case the reactionary justices have to ignore their reactionary methodological commitments, and adopt a progressive legal method of interpretation of the relevant materials, and in particular the equal protection clause of the Constitution. What will they do?

Like I said it’s a hypothetical case so the answer can never be known, but the legal realist/cls view is this:

The MORE IMPORTANT the case is politically, the LESS IMPORTANT legal methodological commitments become, and the MORE IMPORTANT substantive political commitments become, on the part of legal interpreters. Conversely, THE LESS IMPORTANT the case is politically, the MORE IMPORTANT the purely methodological commitments of the legal interpreters become, in regard to the outcome.

Now it’s not a coincidence that reactionary political commitments and reactionary legal methodologies usually aren’t in tension with each other, just as progressive political commitments and progressive legal methodologies aren’t usually in tension. That’s why the interpreters chose to adopt those methodologies after all. Not because those methodologies themselves are “the law,” independent of any political commitments, which is a nonsense statement (See if you can figure out why).

But sometimes they ARE in tension. That’s when much cruder political considerations come to the surface in legal interpretation. But only — and here’s the key caveat — if the case is REALLY important, in substantive political terms. Because it it’s just not that important, politically speaking, judges are much more likely to let their legal methodological commitments trump their strictly political commitments, should the two be in tension in a particular case. Why? Because allowing that to happen is important to maintaining:

(a) The perceived legitimacy of the system to outside observers (See, it’s not just politics) and;

(b) The judges’ own sense of the legitimacy of their own professional identities. (See, it’s not just politics).

What I’m describing here is the distinction between what has been called a hot case and a cold case. The hotter a case is, the more important politics in the most straightforward sense become. But the vast majority of cases — including the vast majority of cases decided by the SCOTUS — are, more or less, cold cases. Either they’re just not very important, politically speaking, or the political considerations the cases implicate are complicated and in tension, or some combination of these factors is in play.

Cold cases — again, this is the vast majority of litigation, even at the Supreme Court — can be decided by judges in terms in apparently purely “legal” (meaning technical, methodological) ways. And note that one thing judges really love in these kind of cases is to come to results that are at least mildly in tension with their substantive political commitments, because doing so proves that law isn’t politics after all. Which in turn helps explain why a large percentage of SCOTUS decisions are 9-0, and/or don’t break along purely predictable partisan lines.

But when the stakes are high enough, all that goes out the window, and law and politics seem to merge into one thing. I mean that’s what I would predict would happen in my hypothetical presidential election case anyway.

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