Althouse: "[T]he silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution..."

September 8, 2009

"[T]he silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution..."

"... without making controversial judgments of political morality in the light of his or her own political principles."

By embracing that fiction — Ronald Dworkin says — Sonia Sotomayor squandered a precious opportunity to talk to people seriously about what constitutional intepretation really is.

13 comments:

A.W. said...: In other words, Dworkin is annoyed that he didn't have his chance to get a senatorial stamp of approval on "living constitutionalism."

and i love how he invokes democracy on the subject.

The real answer is this. try to seriously interpret the constitution as close to its original meaning as practicable. And only strike down statutes if you are CERTAIN the constitution demands it.

And no, that doesn't send us back to segregation or anything silly like that. those who say that sort of thing don't give the founders enough credit.; 9/8/09, 11:19 AM
Balfegor said...: There's a difference between trying to defer to the judgments of political morality made in actual legislative enactments -- however imperfectly inferred -- and bragging about one's awesome power to do precisely whatever one likes. The question, I suppose, is whether she should have been descriptive about the process -- in which case Dworkin is certainly right -- or normative, in which case I think he's clearly wrong. I don't think the general population think that ought to be the process; if that kind of personal political morality intrudes on the process of adjudication, it's an unfortunate result of the inherent kludginess of language (esp. when different rights run up against each other), and the imperfection of human reason. It's a bug, not a feature -- the blurred boundary where the Constitutional separation of powers has broken down.; 9/8/09, 11:22 AM
rhhardin said...: Political morality and political principles put a lot of slack in the sentence.; 9/8/09, 11:24 AM
Salamandyr said...: Personally, I don't think it's the judgment calls that Justices make, where they parse a sometimes opaque clause of the Constitutions to arrive at a solution that may not make everyone happy, but at least settles an issue, but the times they are faced with clear meanings, as well as historical precedent, and throw it out to come up with something to fit their own predetermined sense of justice or fairness, that cause people to question the legitimacy and fairness of the High Court.

Deciding, as they did, that the Endangered Species Act did not qualify as a "takings" under the Constitutions was in my opinion wrongly decided, but at least was a plausible opinion derived from the words. Kelo on the other hand, was pure cloth.; 9/8/09, 11:40 AM
Wince said...: Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

Of equal if not greater importance is that a judge knows what the law isn't, apart from his or her own personal "judicial philosophy."; 9/8/09, 11:41 AM
mccullough said...: I don't share Dworkin's assessment of Sotomayor. I don't think she understands the law or judicial philosophy nearly as well as Roberts.

Anyway, Dworkin's philosophy of judging gives no reason to prefer Sotomayor's views to Roberts' views. If you don't agree with Dworkin's premises, then you won't agree with him.

It just comes down to politics.; 9/8/09, 11:42 AM
traditionalguy said...: Dworkin's article is great. Except he throws in for reader interest his Sadness that Sonia did not give a Dworkin like lecture to the TV audience, and in effect shoot a bird at all those in the TV audience that had any fears of a Supreme court majority continuing to fail to see that white men can have rights like other groups do. Coming after electing the first Black President, all eyes were turned upon Sonia to see if she was commited to giving white men equal justice. The Wise Latina Woman, being No Fool, only talked fidelity to the law thus allowing white men some hope.; 9/8/09, 12:06 PM
Henry said...: Interesting that Dworkin's world view includes the idea that Chief Justice John Roberts and Justice Samuel Alito are not "respectful of technical legal argument" and that the pair have brazenly ignored past decisions, "openly or covertly."

(Question: Is it possibly to brazenly ignore something covertly?)

To justify the latter assertion, Dworkin footnotes himself.

Getting back to Dworkin's main point, his hypothetical Senatorial question -- the type of "different and better question" that Sotomayer could have answered if everyone was honest -- reads almost like parody.

Picture in your mind Senator Leahy or Senator Hatch asking the judge to speak "abstractly" about some difficult constitutional issue and summing up with this reassurance:

...I can't and won't draw any inferences about how you would vote in any actual case from what you say...

If I was Sonia Sotomayer, I would be soooooo reasurred.

If the judge is to answer questions about political philosophy posed by politicians, what is the point EXCEPT to draw inferences?

Dworkin wants to dispel the myth that judges aren't political. His alternate reality is one in which Senators aren't political. It is, frankly, surreal.; 9/8/09, 12:31 PM
NotWhoIUsedtoBe said...: This comment has been removed by the author.; 9/8/09, 12:43 PM
NotWhoIUsedtoBe said...: She's got the rest of her life to do it.

She said her lines and played her part. Now she's writing the script; 9/8/09, 12:43 PM
Joe said...: Dworkin at once says that Scalia and Thomas are silly for looking to the past and that Roberts and Alito are silly because they don't look to the past.

One of the oddest points in Dworkin's screed is the clam that "[everyone] has an overriding interest in embracing the myth that judges' own political principles are irrelevant." That's total rubbish--it's exactly the opposite that was the point of concern and which is always the point of concern for both sides of any nomination. What's perverse is that it's the nominees themselves who maintain this fiction. Why would Sotomayor be "well advised" to embrace that myth if everyone else was doing so as well? This is nonsensical.

Dworkin has written some compelling articles; this isn't one of them. (Were I his editor, I would have advised getting rid of the partisan hand grenades and stick to the point. But then, methinks that was the point.); 9/8/09, 5:51 PM
Beldar said...: Dworkin's pronouncement amounts to saying: "I am an unprincipled bastard who would betray my oath to uphold the Constitution; therefore, all judges must also be unprincipled bastards who will betray their oaths to uphold the Constitution." This smug perfidy makes me sick.; 9/8/09, 6:12 PM
Methadras said...: What if the founding fathers had put a clause into The Constitution that said that none of these Clauses and Amendments where subject to interpretation? I'm just curious about that.; 9/8/09, 6:54 PM