The distinguished legal scholar Ronald Dworkin, author of Law’s Empire, among many other books, and a frequent commentator for the New York Review of Books, died last week. An ingenious scholar, he made many important contributions to legal philosophy. Yet his most influential idea has produced a more questionable legacy. This is the idea that when judges decide constitutional cases, they should draw on moral principles as well as the legal materials at hand, like statutes and judicial precedents. This idea, abused by liberal and conservative judges alike, has harmed our democracy.
When judges are called upon to resolve disputes, they frequently face a pile of ambiguous texts. The Constitution, for example, overflows with vague, undefined phrases—“due process of law,” “equal protection,” “cruel and unusual punishment.” Statutes and earlier decided cases are often no better.
To resolve these ambiguities, judges may look for clues about the writers’ meanings, or follow canons of interpretation, like the rule that more specific legal commands prevail over more general commands. But it is tempting for judges also to rely on their moral beliefs, or ideological predispositions. If the Constitution bans “cruel and unusual punishment,” a judge who rejects the death penalty on moral grounds may want to conclude that the death penalty is cruel and unusual, and hence constitutionally barred. If the Constitution creates a “right to bear arms,” a judge who believes strongly in the right to self-defense may conclude that this right restricts gun control.
Dworkin did not believe that judges should simply impose their moral views on the law. He developed a sophisticated theory that holds that the judge’s duty is to take existing legal materials—the relevant constitutional text, precedents from previous court cases, and so forth—and provide the best account of how they fit together. In doing so, the judge must not only parse the legal texts; he or she must also engage in moral reasoning, so that the interpretation finally chosen not only reconciles those texts but reconciles them in the best way possible, that is, so as to advance a morally correct vision of society.
This account provides an accurate and defensible description of how judges develop the common law (the body of law made by judges, via court rulings, that governs much private conduct like contracting) and interpret statutes. Although judges deny that they “make law,” Dworkin rightly pointed out that when confronted with legal texts like statutes, judges must draw on general background norms to interpret them, and these norms frequently reflect common moral and political suppositions. Where there is a moral consensus, the use of these norms is almost invisible. And when judges disagree, or make mistakes, legislatures can easily correct their decisions by passing new statutes.
But Dworkin was most famous for applying this idea to disputes over the meaning of the U.S. Constitution. And here he made a wrong move. Constitutional law differs from statutes and the common law in two relevant ways. First, the process to amend the Constitution is extremely cumbersome, so that if the Supreme Court declares that pornography or campaign spending is protected by the right to free speech, it is virtually impossible for the public to undo this ruling by electing legislators who oppose pornography or support campaign finance reform. Second, the Constitution and most of its significant amendments were produced a century or two ago, when the country was radically different. As a result, they provide only limited guidance today and hence maximum space for judges to “interpret.”
Moreover, Supreme Court justices face no negative consequences if they interpret the Constitution so as to advance their ideological commitments. (By contrast, state judges typically serve short terms and can be replaced by appointment or election.) Encouraged by fawning lawyers, journalists, and law professors, Supreme Court justices frequently come to think of themselves as uniquely qualified to divine public morality—which almost always somehow coincides with their own. Because our system gives judges so much power, Supreme Court justices are able to impose their ideological commitments over an enormous range of public policy issues—health care and gun control, criminal punishment and sexual freedom, religious liberty and public schooling.
In his obituary of Dworkin, New York Times Supreme Court reporter Adam Liptak noted that Justice Anthony Kennedy is the most Dworkinian of the current crop of justices, the most likely to justify his decision using moralistic language. Kennedy is also the least respected of the bunch. His efforts to provide the moral basis for his votes typically descend into gobbledygook. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” he warbles in one forgettable opinion on abortion rights. It is in the nature of issues like abortion that reasonable people have differing moral attitudes; democracy exists to enable them to resolve their disagreements in a fair and peaceful way. When judges decide these issues based on their moral beliefs, they deprive people of their right to determine policy through the vote. Judges ought to be more respectful of public attitudes; Dworkin’s method encourages them not to be.
Dworkin, like many liberals, rightly worried that majorities will exploit minorities if judges do not step in. If it were not for the Supreme Court, he once wrote, black children would still attend segregated schools in the South. This was probably inaccurate given the legislative changes that took place in the 1960s. Jim Crow was defeated by political organization that changed public attitudes and ultimately led to federal civil rights statutes, not judicial noblesse oblige. But if we give the Supreme Court credit for its role in the civil rights revolution, we also must remember that a century earlier the Supreme Court had declared that blacks were not citizens in Dred Scott, helping to precipitate the Civil War, and in the 1930s the court absurdly attempted to prevent the federal government from addressing the Great Depression by experimenting with economic regulation. The current conservative majority “fits” constitutional text and judicial precedent to the justices’ ideological distrust of government intervention in the market. That is why the Supreme Court has been able even today to strike down many economic regulations, like regulations designed to prevent firms from confusing consumers and rules that allow buyers of defective goods to win large punitive damages.
Dworkin was horrified by the rulings of the conservative justices, but, while he obviously did not cause them in any direct way, his theory of judging gave philosophical respectability to what psychologists call motivated reasoning. It is tempting for all of us to interpret the world so as to confirm our moral views. Judges given license by Dworkin to interpret the Constitution persuade themselves that their moral beliefs are embodied in that document, and thus disregard the policy choices made by the public’s elected representatives.
In a typical ivory tower conceit, Dworkin responds by arguing that it is essential that nominees to the Supreme Court discuss their “judicial philosophies” with the Senate. The idea is to ensure that Supreme Court review has a democratic pedigree. But no one with any hope of confirmation would ever do such a thing. Because constitutional law is so politicized, nominees must hide their views from the public. Confirmation hearings take place entirely in code. President Bush says that judicial nominees should exercise “strict constructionism,” while President Obama says that they should use “empathy.” Chief Justice John Roberts claimed at his nomination to be an umpire calling balls and strikes, and Justice Sonia Sotomayor said that she would merely “apply the law”—while everyone knows that what is really at stake is whether Roe v. Wade will be overturned or campaign finance reform will be permitted.
The upshot is that rather than resolve gun control, abortion, and campaign finance by voting for politicians who hold our opinions, we vote for politicians who we hope will pick judicial nominees who hold our views, while the potential justices do everything they can to mask their positions.
This is not a good way to run a country. It would be better if judges tried to avoid making constitutional decisions and instead deferred to the national and state governments as much as possible. A few scholars, notably Jeremy Waldron of New York University and Adrian Vermeule of Harvard, have argued for this kind of judicial passivity. Waldron emphasizes the real harm that occurs when judicial review effectively blocks the public from exercising its right to political participation, while Vermeule argues that judges cannot be expected to possess either the moral wisdom or the knowledge of the empirical world that is necessary to bear the interpretive burden that Dworkin assigns to them.
Dworkin liked to imagine that judges should act like Hercules, drawing on superhuman wisdom and patience to bring order to the Augean stables of our law. His critics see the judge as bureaucrat and humble servant of people. Is it any wonder that someone like Anthony Kennedy would find the Dworkinian view more appealing?