Judging is Hard
A fairly banal observation, I know, but one worth revisiting in light of the the latest Supreme Court appointment. Here’s a telling paragraph from Jeffrey Toobin’s excellent profile of Chief Justice John Roberts:
Roberts’s solicitude for the President and the military extends to lower-profile cases as well. In Winter v. National Resources Defense Council, the question was whether the Navy had to comply with a federal environmental law protecting dolphins and other wildlife while conducting submarine exercises off California. Roberts said no. “We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals,” the Chief Justice wrote. “Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.” Though Roberts was writing for only a five-to-four majority, he added, “Where the public interest lies does not strike us as a close question.”
Not a close question if you share Justice Roberts’ assumptions about national security and ecological protection, but a judge with a different decision-making calculus (a liberal, for example) would probably place greater emphasis on preserving marine life. In fact, it’s clear that in this case, the crux of Roberts’ decision hinged on a fairly complex cost-benefit analysis that has very little to do with what the law does and does not say. How should a judge weigh the prospect of degraded submarine readiness against the comparatively more likely yet less significant impact of naval training on marine life? I’m pretty sure there’s no universal decision-making framework for comparing these claims, and I’m equally sure that your answer to that question will depend heavily on your own ideological sympathies.
Which lends credence to one of Sotomayor’s more controversial utterances: namely, that the Court of Appeals “is where policy is made.” Unlike many of her critics, I don’t believe this comment reveals any sympathy for “legislating from the bench.” I think she’s simply acknowledging that the complexity of our legal system essentially forces judges to interject themselves into the political process. Not to pick on Roberts, but choosing the US Navy over a vulnerable dolphin population is an inherently politicized decision, and I’m inclined to think that other actors are better equipped to make that decision in the first place.
Judges will always enjoy some degree of interpretive latitude, but I think this example validates at least one conservative insight into the nature of the judiciary. When Chief Justice John Roberts rules in favor of the US Navy and against environmentalists, he’s rendering judgment on a question best left to the popularly-elected branches of government. Voters (or their elected representatives) ought to be able to weigh in on a controversy that has little to do with interpreting the law and everything to do with their values and interests.* If Sotomayor demonstrates a willingness to defer to her elected counterparts on the bench, I’ll be more than satisfied with her elevation to the Supreme Court.
*Even if you’re in favor of technocratic management, I don’t think the court is particularly well-equipped to make non-legal decisions.
UPDATE: Esteemed co-blogger Mark Thompson sets the record straight (to put it charitably) in comments, noting that the Winter ruling involved a motion for temporary injunctive relief, which pretty much has to be adjudicated by the courts. I still think justices should place a premium on judicial deference, and Toobin’s example does suggest that Supreme Court rulings are rarely cut-and-dried, but Winter v. National Resources Defense Council is not a case where the judiciary should have deferred to the legislature.