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06/11/2021

Eric Segall on the Dangers of Philosopher Judges
Michael Ramsey

Ar Dorf on Law, Eric Segall: The Law & Liberty Blog, Broken Clocks, and the Dangers of Philosopher Judges. From the introduction [edited to remove some snark I find misplaced]:

I subscribe to a website called the "Law & Liberty Blog" to keep abreast of what folks I normally disagree with are saying and what they think is important and timely. ..

...[E]very now and then an essay appears on the site that I find agreeable, persuasive, and important. So it was with a piece by Greg Weiner last Thursday titled "Why Would We Expect Philosopher Judges?" [ed.: noted here.]  Weiner's essay is a response to a truly horrifying social media famous article in "The American Mind" by four folks calling for "A Better Originalism." [ed.: here.] That article was a conservative manifesto asking judges to pay much less attention to text, history, and precedent, and focus more on [a conservative moral vision]... 

...

[Weiner] notes two problems with the call for a "Better Originalism." He questions the premise that all important constitutional issues are also judicial issues, and he wonders whether judges who have the power to impose their moral convictions on the rest of us will act like responsible judges. Both points are important and transcend the issues raised by the "Better Originalism" manifesto.

A representative democracy governed by a written constitution could function quite well with judges who only strike down laws that, in the words of Alexander Hamilton in Federalist No. 78, are at an "irreconcilable variance" with constitutional text, structure, or history. In fact, as I've written before, to the extent we care about how the framers viewed judicial review, they expected judges to use that power modestly, rarely, and only in those cases where the constitutional error is clear. After all, as Weiner observes, judges were once law students and lawyers, and they were trained in advocacy and textual analysis, not moral reasoning. When judges "interpret" vague texts like "equal protection" and "free exercise" with contested histories, they will, absent strong deference to more accountable political officials, inevitably use morality-based reasoning to reach what are usually controversial value judgments. Weiner sensibly asks the question why we would delegate such a task to lawyers and judges. As the early originalists like Robert Bork argued, where text and history are unclear, a judge's job should be to step aside and let the political process, assuming it is functioning properly, work.

Weiner's second point fits nicely with his first one. Judges who feel free to investigate the moral universe and veto laws based on their personal views of the good, the bad, and the ugly will almost certainly abuse their power. My book "Supreme Myths" catalogues how serious a problem this abuse of power has been throughout American history. To Weiner's credit, he doesn't want future judges embracing that moral perspective even if, as the cards now lie, they would likely see the world the way he does. 

I generally agree (apart from the snark).  I particularly agree with this sentiment (from the conclusion):  "Limiting judges to the study of text and history, and leaving moral judgments to the people who make the law, would be a much better system of justice."  My main difference with Professor Segall, reflected in various exchanges on this blog, is that(a)   I think text and history provide reasonably clear answers more often than he does, and (b) I think courts should intervene against the political branches on the basis of text and history more often than he does.

I also agree, though, that strong judicial restraint provides a possible compromise position at a time of great polarization.  Again from the conclusion: 

About 18 months ago, I wrote on this blog that a better future for the Court and our country would be one where the Justices return the issues of abortion, affirmative action, and gun control to the states. The Court has now decided that next year it will hear major abortion and gun cases, and the Harvard affirmative action litigation is right around the corner. I suspect that, as a matter of policy, Weiner and I might disagree on these three issues even if we might find common ground in the idea that judges should stay out of these divisive and society-defining questions.