Supreme Values

Last semester, I took a course entitled "The Art of Appellate Decisionmaking," taught by Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit. Judge Edwards took great pains to describe to us what the role of the appellate judge truly was. In the Judge's opinion, 75 percent of the cases he hears are "easy" cases; the outcome is clearly dictated by law or precedent. Another 20 percent, he said, are "hard" cases; the law is unclear or ambiguous, precedent is not directly on point, and there are considerations that point towards different outcomes, but ultimately one outcome is much more favored by existing state of the law. (And note that appellate judges are bound by the law of their Circuit; a Circuit Court of Appeals must rehear a case en banc, with every judge on the court hearing the case, in order to reverse its precedent.) The last five percent are the "very hard" cases; in such cases, the various interpretive factors judges use are unavailing or in equipoise. In such cases, judges hit the Hartian line where "law runs out," and they must rely on other principles to guide them to a just decision.




This, Judge Edwards explained, is what makes the work of a Supreme Court Justice entirely different from the work of an appellate judge. Guess, if you will, from which category of cases the Supreme Court draws its 70 or so cases every year.

This brings me to Justice Souter. Although I have not yet read the full text of his Harvard Commencement speech, it has already received praise from many corners of the blogosphere. At the New York Times, Linda Greenhouse quotes the following passage regarding Justice Souter's view of difficult constitutional questions:

A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one.

Deciding a case involves creating a hierarchy of values. And values enter the picture not just in determining the law, but in determining the facts as well. Brown v. Board of Education effectively overruled Plessy v. Ferguson because facts must be viewed in context: In 1896, separate but equal accommodations were a vast improvement in race relations in this country, whereas in 1954 "segregation...carried only one possible meaning:...a judgment of inherent inferiority on the part of the minority race." As Linda Greenhouse quotes with delight: "So much for the assumption that facts just lie there waiting for an objective judge to view them."

Values are the name of the game at the Supreme Court. The Constitution is far from a coherent document. Indeed, it is an amalgamation of various values and a compromise between those values. In his book Active Liberty, Justice Breyer refers to the Constitution as a "Democratic Constitution," and argues that when constitutional values conflict, the best outcome is the one that best promotes democracy. For example, the "plain text" of the Constitution and its "original meaning" give us absolutely no clues on how to decide cases of campaign finance. There is simply not enough data in the document to view it at that resolution. So we look to values. A complete bar on all campaign finance reform would cause democracy to suffer greatly, but a complete bar on all donations to political candidates would stifle our national discourse. For Justice Breyer, the constitutional line is the one that best promotes a functioning democracy. This is not the only view possible. I tend to believe, in contrast to Justice Breyer, that the Constitution speaks more to autonomy than it does to democracy, and I interpret the Constitution accordingly.

In the end, interpreting the Constitution is a philosophical exercise in which one must infuse his own theories about the hierarchy of values behind the Constitution into the text and figure out what that interpretation means for a particular set of value-laden "facts." Chief Justice Roberts has done a grave disservice to the country by suggesting that Justices are simple syllogism-machines* that apply generalizations to particular instances. Perhaps this is most of the work of a real appellate judge, but this is not the work of the Supreme Court, and the sooner we understand this the better we will be able to evaluate nominees for the highest court in the land.


* Thanks to Prof. Burt Neuborne for this turn of phrase