When Should Judges Defer?

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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13 Responses

  1. Will says:

    Full disclosure: Mark’s a lawyer; I’m not. Hopefully that explains my limited knowledge of legal procedure.Report

  2. Jaybird says:

    Correct me if I’m wrong but it seems that judges have historically been lagging indicators by virtue of their appointment process. They were appointed by guys a decade (or more) ago and those guys who appointed them were (more or less) democratically elected as representatives of “the people”. The judges would therefore be a reflection of the will of the people at the time of their appointment.

    If judges make a decision that goes against the popular will, it’s either because the judge is too old fashioned (the result will be a more progressive legislature confirming more progressive judges) or the judge is too progressive in the wrong direction (the result will be three-strikes laws, minimum sentencing laws, and so on). When a judge anticipates public opinion correctly (as I suspect is going on with the whole gay marriage thing), it will result in grumbles that fade over time.

    The biggest problems, it seems to me, are caused by judges that fail to anticipate the public opinion and are progressive in the wrong direction.

    The sentence above that made me laugh was this “but once an unconstitutional law is permitted to stand out of concerns about defying the will of the public, then the constitution is irreparably harmed.” That horse left the barn, started a family, those foals grew up, had families of their own, and the grandfoals and the great-grandfoals. I’m not sure that the barn is still there, let alone has a door that will close.Report

  3. Jaybird – I hadn’t thought about that aspect of things much, but there’s probably a certain amount of truth to that.

    As for your last paragraph – I can’t blame you for laughing at that. There was, after all, a reason why I linked to the wikipedia entry for West Coast Hotel v. Parrish. Still, I like to think that in most cases, judges are trying to preserve those aspects of Constitutional law that continue to serve a useful function.Report

  4. Will says:

    Call me old-fashioned, Jay Bird, but I don’t think judges should be in the business of “anticipating” public opinion. Moreover, I think that many judges are drawn from a demographic – the prosperous, socially liberal elite – that is ahead of the curve when it comes to evolving social mores.Report

  5. Jaybird says:

    Don’t get me wrong! I loved this piece and am still chewing it over.

    I’m currently trying to figure out whether historically, the repercussions of judicial rulings that were too old-fashioned were worse than the repercussions of progressive in the wrong direction rulings (the wrongs of which are mitigated by progressive rulings in the right direction).

    Given that the barn’s gone, I mean. If there were a horse to lock up and a place to do it, I might reach a different conclusion.Report

  6. Jaybird says:

    “Call me old-fashioned, Jay Bird, but I don’t think judges should be in the business of “anticipating” public opinion.”

    Dude, I am so with you. The sentence “I don’t think (agents of the government) should be in the business of (action)” is probably one that I agree with for any values you’d want to put in there with very, very few exceptions. (Nutball Libertarian here, nice to meet you.)

    I’m more ruminating over which side has excesses too costly to bear.

    Given my (previously stated) opinion that the Dred Scott opinion was based on, among other things, precedent… I don’t know that keeping to the more conservative viewpoint regarding judicial leeway is necessarily less fraught with peril. Which is not to say that Buck vs. Bell is an acceptable price to pay.

    As I said, I’m still chewing this over.Report

  7. Cascadian says:

    I like Will’s point on political capital. I am often concerned about the ability of the courts to maintain independence in the face of the blogosphere and idjuts like Mark Stein.Report

  8. E.D. Kain says:

    Brilliant post, guys. Great way to make use of this site and provide some diversification. Lots and lots to chew on here, as well.Report

  9. Will says:

    Cascadian –

    Thanks. We tend to think of the courts as free-floating arbitrators, but they can’t really be separated from their larger political context. To make unpopular (yet necessary) constitutional decisions, the courts need to retain a certain amount of public legitimacy. So I think that deferring to the legislature on divisive social issues is a good way to protect the courts’ judicial independence.

    Having said all that, Mark is on the cusp of convincing me that the way Iowa’s equal protection laws are formulated precluded the Iowa Supreme Court from ruling any other way. So maybe my objections don’t apply to this particular case.Report

  10. Cascadian says:

    I don’t have much to say on the particular case. I’m more interested in judicial independence in the modern age, how decisions actually get made and their institutional consequences.

    Like you, I’m not a lawyer. I do however, hang out with a group of lawyer/judges in BC and have some first hand knowledge of the way they frame some of these problems to themselves, albeit in a different legal frame work .Report