I love your list, Eric. I’ve been thinking, too, about the questions you raised at the outset of this discussion, when you said we have no baseline for assessing the work of Supreme Court justices other than how the results fit with our ideological preferences. Opinions are like silky dresses (or maybe a pair of dapper dress shoes is a better metaphor for this group): If they flatter us and make us feel better about the world we live in, we are sold. If not, we either rip them to shreds or relegate them to the back of the closet.
Walter says law matters more than Eric’s critique suggests: It has a seat on the bench next to ideology. As a judge who actually grapples with this question, says that it’s inevitable for judges to inject emotion and practical concerns, and that great judges “have been frank in their opinions about these sources of their judicial votes.” Also, they have evidence to support the moves they make.
Could we then come up with a kind of Justice Report Card? I’m thinking of a metric with multiple scores, like the one gymnasts or ice skaters receive. We could score justices and their opinions for quality of evidence, candor, degree of difficulty, logic, adherence to past precedent, consistency with their own stated philosophies, plausibility of statutory construction, and style (argle-bargle!). I’m just brainstorming—surely one could all refine these categories. (And I bet someone already has. Readers, send me examples?)
The hardest boxes of the report card to grade, though, would be two I’ve left out so far: fidelity to the Constitution, and a ruling’s practical effect. Those two scores might be at once the most subjective and the most significant. They depend on how we each see American history and law, and a gut check. Gay marriage is either a social good to be celebrated or a threat.
I’m OK with the subjective nature of the Justice Report Card, because of course judging is a mix of law and politics. The point of scoring various categories would be to show how much law and how much politics come into play in a given opinion, or a particular justice’s record. The more contested the case, the more likely that ideology will play a role. That’s why it matters so much who the president is when seats on the high court or the lower ones must be filled. Judging isn’t lawless; it’s also not law-only. I am despondent about the court’s ruling about the Voting Rights Act because I think it will harm the interests of black and Hispanic voters. I am furious about it because Chief Justice Roberts’ opinion was shot through with holes. The opinion I’d rate the highest this week was Justice Ginsburg’s dissent on the Voting Rights Act, because she thoroughly exposed the majority opinion’s weaknesses, hanging it up like a torn garment for all to see. And she also taught me a great deal about a subject I thought I understood.
Which brings me to two things for which I give thanks. The first is the existence of these opinions we’ve been dissecting. Judges (especially when they are deciding an appeal) have to write down their reasons. It’s a test of candor, or at least transparency, that the job imposes. This is perhaps the best quality of the third branch, the one that’s at the root of its legitimacy.
My second thanks goes to all of you, also for teaching me so much this week. I feel like the novice marathoner who somehow got to go for a run with some of the world’s great athletes. Thank you for letting me pant alongside you.
Have a wonderful summer,