Mark Pulliam on Good Faith Judging [Updated with my Comment]Michael Ramsey

At his new blog Misrule of Law, Mark Pulliam: The Delusion of Good Faith Judging.  It begins:

The concept of written legal rules—of the law itself—assumes that their content is fixed and ascertainable. The rule of law likewise depends on citizens having advance notice of what they can and cannot do, pursuant to clear, knowable directives. Legal scholars expend enormous energy pontificating about the appropriate techniques judges should apply in the course of constitutional interpretation: textualism, originalism, and so forth. Libertarian theorists argue strenuously that judges must be given greater authority—through “judicial engagement”—over the political branches. Each day, lawyers across the country trot off to court, briefs in hand, hoping to convince a black-robed judge–enthroned behind a raised, magisterial bench—that the relevant legal rules, properly construed, compel a ruling in favor of their client.

This entire enterprise rests on the premise that judges, having taken an oath to uphold the Constitution and laws, will actually make a good faith effort to do so. The bedrock postulate of our legal system is that judges will, in making their decisions, fairly interpret the relevant text, and issue rulings based on the actual words written down by the lawmakers who enacted them. That is, by submitting ourselves to the authority of the judiciary, the polity relies on them to do their job honestly and honorably. The august trappings of the judicial branch, complete with marble columns, solemn ceremonies, and incantations of “your Honor,” are calculated to inspire confidence–if not awe.

But what if judges routinely did not make their decisions honestly and in good faith? What if they simply made up things to suit their own personal predilections? ...

(Via How Appealing).

FURTHER THOUGHTS:  On reflection, I think the central premise of this post is mistaken (perhaps intentionally so, for effect).  I expect that almost all judges -- certainly all that I've had any experience with -- "make their decisions honestly and in good faith."  But this does not prevent them (or at least many of them) from reaching decisions "to suit their own personal predilections."  The central point of the various versions of living constitutionalism (and its statutory counterparts) is to permit judges to introduce personal predilections -- more palatably described as the practical needs or evolving morality of modern society -- into their decisionmaking.  And once the door is opened to these predilections -- even if they are described as one among many "modalities" of interpretation -- they naturally tend to dominate the outcome.  If the legal culture tells judges they need not reach decisions that seem wrong on policy grounds, then as a simple matter of human nature judges won't reach decisions that seem wrong on policy grounds (at least in cases they think matter).  No dishonesty or bad faith is needed.  Judges believe they are doing the right thing because the legal culture tells them they are.

Originalism and textualism are attempts to counter this tendency.  But originalists and textualists should not think of non-textualist/non-originalist judges as acting in bad faith, because this misses the point of the theoretical and cultural debate.  The reality is that judges are acting in good faith, and yet consistently reaching results in accord with their personal predilections, because the legal culture has developed that way.  The question is whether that's a problem.

ANDREW HYMAN ADDS:   As the post says, the relevant statutory language in Title VII of the Civil Rights Act of 1964 is: “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  

My opinion is that if judges believe in good faith that they "need not reach decisions that seem wrong on policy grounds," then they could instead simply render an opinion and verdict that says the statute is insufficient and is hereby augmented.  Doing so would (in a way) be much more honest than pretending that the word "sex" in the statute means something other than gender.  

 

If the statute did not include the word "sex" then presumably a typical activist judge would have a more difficult time avoiding a decision that he thinks is "wrong on policy grounds," because the typical activist judge prefers to hide behind a statute than forthrightly pronounce a verdict that says the statute is insufficient and is hereby augmented.  For example, if the word "sex" were not in the statute, then I suspect that an activist judge would be very unlikely to interpret the word "race" as including sexual orientation, and the activist judge would therefore be inclined to issue a decision that is "wrong on policy grounds," and then use that as proof that he does not always judge according to subjective policy preferences. 

 

FURTHER UPDATE (by Andrew Hyman):

 

Mark Pulliam responds: 

 

I suggested that judges may be the ventriloquist dummies for the academy, which Mike [Ramsey] echoes: “Judges believe they are doing the right thing because the legal culture tells them they are.” That doesn’t mean they are acting in good faith, since they swore to uphold the law, not to produce policy outcomes favored by the academy. Frankly, I think both the judiciary AND the academy are often acting in bad faith. And “originalism” doesn’t ensure good faith; it is only a technique that is as good or bad as the person applying it.

 

In his first inaugural address, Lincoln said “the intention of the lawgiver is the law.”  I agree with that, at least if the intention is publicly known and has been officially enacted.  Originalism (or at least textualism) is the pursuit of that intention, and of course all pursuits can result in failure.