Friday, January 13, 2012

Modern Judges

The corrosion of the role of judges results not so much from competing views of what such roles should be, but from a more fundamental lapse. The conflict is not between will and judgment, but between reason and sentiment. Certain soft-headed notions that were emotionally appealing were given credence in legal circles, and once established metastasized into the current malady.

The first such sentiment confused fairness with compassion. Fairness, properly considered is an attribute of a process, not an outcome, and it is a cold-blooded attribute as well. Is it fair that a six year die for want of a heart transplant, while another won a coin toss, and is thus spared? Of course it is. Does it suck? Sure. Fairness and compassion are inherently incompatible; compassion sometimes seeking intervention when fairness would be merely heart-rending. This fact makes even more corrosive the common equation of fairness and compassion. No one really wants perfect fairness any more than they want perfect justice. What is the latin maxim for “Sometimes the law sucks?”

The second noxious sentiment is that the result of law is justice. This is, and always has been, wrong. To be clear: justice is simply concerned with the appropriateness of consequences of choices and actions. The natural result of laaw is predictability, and its result may or may not be just. That is why we have written laws, and one of the reasons the concept of precedent was so successful in establishing the common law tradition. If judges were simply to prioritize predictability over outcomes, a free people would figure out how to use that fact to the general advantage. Instead, abominations like the beclowned judge in Kansas City mandating increased school funding, or the ludicrous Kelo decision, or the curious ruling that all wheat affects interstate commerce undermined not so much some constitutional principle, but the predicatability that allows people to manage their own affairs and interactions with one another.

The fact that the fate of the national heathcare system may depend on what Justice Kennedy has for breakfast on a particular day in May, and the lamentable reality that reporting on federal court rulings must contain an obligatory note of which president appointed the judge involved, is evidence mostly of the fact that the judicial system has gained power and lost usefulness. The notion that judges can, by creating law inductively on the idiosyncratic facts of a single case, bind the whole of the society is a parody of serious thought.

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