Posted by Lex, on August 23, 2006
In comments,* Ima Fake responds to the Althouse v Tribe dust-up in a rational – though, to my mind, non-compelling – way. Well worth reading anyway, for those who let the comments to that thread drop out of their scan.
That brings us to the problem you have with Mr. Tribe. I live in a community filled with rocket scientist and engineers. Late at night over the Indian Guides campfire (Yes, we are rednecks and have not gone to the PC concept of “Adventure Guides” – don’t tell the YMCA) I hear pilots and engineers bitch about the uncertainty of the law. What Tribe is expressing, and Ann missing, is the “right for the wrong reason” aspect of law. Engineers have a hard time with this notion, I think because in their world, “right for the wrong reason” is wrong.
There’s a great deal more than that excerpt worth reading, by the way.
My main objection to the notion that a judge can be “right for the wrong reason” is not tied to legal doctrine (not being a lawyer), but to the related but still distinctly different notion of “justice.” We are a nation of laws, not men, argued John Adams, and for this to have meaning it must mean that everyone is equal before the law, that those who dispense justice are doing so from a results-neutral perspective, applying the corpus of the law and precedent as it is found. If we come to the point where one of two disputants – both of whom believe they have a valid case to argue founded on the law – realizes instead that his argument does not matter to judge so much as the predetermined result that particular judge would like to achieve, then the binding framework of ours society is damaged to some degree, as is the incentive for people to act in a way that they believe is in accordance with the law.
This is different than the lawyer’s tactic of “shopping” for a certain judge, one he believes would be friendly to his line of argument, since it is supposed at least that the other litigant will have an equal opportunity to shop elsewhere. When a justice “shops” for a case in order to arrive, through whatever tortured process manufactured in lieu of argument, at a conclusion, the rule of law is lessened in the public eye.
And that doesn’t do anyone any good.
Update: I was pressed for time this morning, and didn’t get a chance to read Ann Althouse’s NYT Op-Ed, which Ima graciously linked to. Being a law prof and all, she puts it far better than does your humble scribe (who still has more night traps than she does, so there):
For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges…
This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.
This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed…
If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.
There’s irony for you.
I’m practically bathing in it. The irony, that is.
*08-01-2018 While this was retrieved in the Wayback Machine alas, it did not have the comments of “Ima Fake” -Ed.
The Lexicans 