How to Check the Little Dictators

-- By KippMueller - 16 Feb 2012

Rationalization as a Tool for Judges

In Plessy v. Ferguson, the court renders that equal protection of the law is established when two sides are separate but equal.

In Brown v. Board, separate but equal does not satisfy equal protection under the law. And yet we’re living under the same constitution as we always have. How is this reconcilable with the belief that judges, isolated in a chamber of pure abstraction, can make principled deductions based on the Constitution without the adulteration of contemporary social values, the whims of majorities, or politics?

Here, we have two courts addressing precisely the same issue, referring to the same text in the Constitution, and coming down on opposite ends. Neither decision was overturned within its time, which means that neither ruling was an anomaly or deviated much from what is standard in the judiciary. And yet both claim to be logically deduced from the sound principles of our Constitution. The fact is that the term “equal protection” holds no definition.

Similarly, the word “liberty” in the fourteenth amendment holds none. It has now become a tool for laissez-faire economists to protect business owners from labor laws. It was derived from British common law, used at the time to refer strictly to physical liberty. Ironically, that’s now become the one lost definition of the term, as evidenced by commonplace indefinite detentions in this country.

That’s because liberty means nothing either. Legal words hold no immutable meaning. It used to be that the definition of a person was a person. Now a corporation is a person.

The words of the Constitution and of our laws have no frozen definitions. The text is an entirely malleable medium used to arrive at an end desired by the judge. As Holmes alludes to in The Path of the Law and Robinson confirms, the judge makes his or her own decision long before the decision is written. The judge makes a determination based on his or her preconceived notions of what he or she wants (for any reason that he or she chooses) and the words are shift-shaped to make it so.

There is no logical process in law because there is no underlying truth to the law. The syllogisms have no established premises. The principles it claims to derive itself from are invented. And the deduction process isn’t real. Rather, the written proof begins at the bottom. Then the way to arrive at it is contrived.

The judge is a creator, not an arbitrator. The judge is a little dictator in our blessed “democracy”, tasked with nothing more than writing law and subsequently rationalizing it.

And this will not change without institutional change.

Who within the institution would want to change it?

Legislators don’t mind it because they are not to blame for the mistakes of the judiciary. In fact, the judiciary often makes decisions that the legislators want but are too afraid to publicize, such as the Citizens United decision.

Judges have no interest in doing so, because they are the possessors of the unchecked power. They want to make decisions based on their own notions of morality, principle, economic theory or whatever else. History does not suggest that possessors of power voluntarily forfeit that power for any reason other than a threat outside of their control.

A defeatist or revolutionary would likely argue that the entire system made an inescapable, inane assumption when it created a Constitution that assumed any human being could sequester themselves into an Aristotelian existence without being affected by social, psychological or political pressures.

What could theoretically be done institutionally to minimize this effect?

If we wanted to fix this situation from within the system, we first have to ask what we would want instead. Holmes and many legal realists argue that decisions should be made based on their effects, not based on formalism and abstraction from the world. At least if the courts were to adopt a legal realist perspective, they could admit that they are creators of law and own up to their role in American politics. They could subsequently see cases such as Citizens United, recognize an inherent corruption therein that spits in the face of democracy, and overturn it so as to empower the masses.

But what checks could alter the philosophy of the courts? Some state courts elect judges with term limits. In that case, they essentially recognize the court as lawmakers and decide that a check is needed. The judge is now privy to legal realism, because his or her decisions are now made with a strong incentive to positively affect the world around them if they seek reelection.

Of course, with politics comes corruption and perverse incentives. This is primarily because judges have to raise money for elections, which means knocking on the doors of special interest groups. In the process, the views of the masses are framed and molded by the media, and the oligarchical special interest groups are spoon-fed preferable law.

The best course of action for promoting legal realism and ensuring that judges represent the views of the masses in a fair, altruistic way would be to have an election process in which judges have term limits and run strictly publicly funded campaigns without even soft money. That way, each judge would be almost entirely focused on how to please the people, and would make decisions primarily based on that incentive. Special interests would certainly find ways to impose themselves, but would have a much harder time doing so.

The judiciary branch is not supposed to be interfused with politics. But it already is. The sooner we stop pretending like the judiciary is not already a political institution in which judges create law to climb the ladder and the sooner we provide checks on them as such, the better off we will be.