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Wednesday, November 30, 2005


Another Time for Choosing

Law is a specialised field with specialised training, because it involves the analysis of language in light of broader legal policies that cut across the whole body of law. If you've ever seen a pro se brief or the briefing of a lawyer that rarely analyses actual law, it's quickly apparent why such work is done by specialists and that it's only done at the highest levels by the brightest, most rigorous lawyers. If you've ever read an intellectually incoherent state court decision, you see the costs of poor training and low degrees of intellectual ability.

Constitutional law is a difficult subject to speak upon because not many American citizens completely know the Constitution or can be quickly brought up to speed on precedents. For example, I think tax laws are knowable, but I wouldn't want to be a judge in that area, as it is a specialised field with a lot of traps for the unwary. To those that think any intelligent citizen can become an effective Supreme Court Justice because Constitutional Law is simple, they portray that they either don't know how complicated the subject can be--e.g. The dormant commerce clause, Colorado River abstention, Footnote 4 of Carolene Products--or that the politicians want a results oriented justice and are unconcerned how a justice makes his decisions. Just because something is knowable does not mean it's simple. If one believes constitutional law is at once knowable, complicated, and specialised, it's obvious why judges and other lawyers of great achievement and demonstrated intellect and knowledge of the field are the ones that you want making decisions. Without their intellect, their random and uninformed decisions will often be wrong and unpredictable.

Why do judges write opinions at all if the work they do is so obvious and the issues so straightforward? And what does it say about judicial claims of authority that they have long been staked on written opinions that have narrative integrity, both in a single case, and with respect to the law as a whole? Without power of their own, the judiciary depends upon its ability to justify its own assertions against those with physical power, namely the executive and legislative branches. This has been accomplished historically through written opinions that show a transparent and reasonable decision-making process. Opinion writing shows respect for the litigants and the process that is always somewhat suspect due to the absence of popular control over the judiciary. Writing opinions shows that what took place ultimately stemmed from the intersection of human reason, written laws with discernable meaning, and the facts of a particular case. That opinion is written thoughtfully and clearly is of fundamental importance to the integrity of the process and the reputation of the courts. The obvious results-oriented decisions of the 1960s did a great deal to discredit the courts, when ordinary people could discern that what had taken place was sophistry. Writing judicial opinions--like the analytical and writing process of so much law it--shows that a result alone is not enough.

The best and brightest lawyers have long been propelled into the judiciary. By best, I don't mean wealthiest or most persuasive in a courtroom, but those most capable of thoughtful, deliberate, and rigorous legal reasoning. It's important for politicians to recognise that this task can be both objective--or at least with a range of reasonable disagreement--but also requires specialized training and a well-trained, capable intellect. It's no more elitist to recognise this fact in the realm of constitutional reasoning, than it is in the realm of physics or math or other specialized fields.

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