Two Courts, One Law

I’ll get to Phil’s McCain-Obama-and-the-courts question in a sec. But I first have to say that while I’m generally a big fan of David Savage’s at the L.A. Times , there are parts of this latest piece that sound like they could’ve been written by Rush Limbaugh.

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.

Ugh. I appreciate the need to get this complex, age-old debate boiled down to within a journalistic word limit, but there’s gotta be a better way. Of course both conservatives and liberals say judges should follow the law. Beyond that, and within the descriptive limits of the stereotyped terms, “conservatives” say that “following the law” means using the fewest possible interpretive clues to figure out what the law means (for statutes, text only; for the Constitution, at best, a guess at what the framers meant in 1789), and as a matter of practice they fill in any remaining areas of uncertainty (of which there are inevitably some in some cases) with broad ideological preferences—about the power of the government, the role of the courts, and the kind of society in which they want to live. “Liberals” believe “following the law” means looking to as many interpretive clues as might reasonably shed light on the text (legislative or other kinds of history, text and textual context, the purpose of the document, etc.). As a matter of practice, they, too, may fill in remaining areas of uncertainty with an equal and opposite set of broad baseline principles, including the principle that judges get to say what the law means.

There’s no way around the problem of laws that are sometimes unclear. I think on balance the “liberal” approach to interpretation has a better chance at preserving the idea of “law” as having some sensible and identifiable meaning. But the reality also remains that vast swaths of the law are clear for both liberals and conservatives; that’s why, among other things, not every dispute in the United States ends up in court. For those that do, there’s also no way around the reality that judges will have baseline structural preferences and preferences about what they think “justice” would require in any given case. But I wouldn’t deny (as many conservatives and some liberals do) that such preferences can matter, at least at the margins of judicial decision-making. That’s why judges are politically appointed. That’s why presidential appointments matter.

So what can we glean about McCain and Obama so far? I’d say that apart from some reassurance that the one reflects most conservative baseline assumptions, and that the other reflects most liberal baseline assumptions, not much. But to my colleagues who’ve watched this longer than I, I’d be pleased to stand corrected here.