Judging is Hard



Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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9 Responses

  1. Avatar greginak says:

    I don’t think it is controversial that courts, especially at an appeals level, involve themselves in policy. Cases that get appealed or to the Supremes do so because there is ambiguity in the laws or how to apply them. No legislature is ever going to come up 100% clear laws that cover every situation. So courts are there to interpret the law. Voters and legislatures can make laws to deal with issues, but until then somebody, the courts, have to rule on cases. And some of the issues judges deal with are narrow , persnickety issues that probably are best dealt with in the legal system.

    The other associated issue is that courts, by protecting rights can stand in the way of an angry mob trying to oppress a minority. Conservative judges, like Roberts, Scalia, etc. tend to said with the powerful like business interests.Report

  2. Avatar Will says:

    greg –

    In cases where the law is ambiguous or unclear, I’d appreciate it if the courts exercised a bit of restraint and deferred to the legislature. Sometimes that’s not possible. Sometimes it is.Report

  3. A few things:
    1. It really shouldn’t be controversial that judges, especially on the appellate level, are going to consider policy implications in deciding their cases, for pretty much the reasons greginak says.
    2. The idea of deference to the legislature is actually pretty commonly practiced by the courts; indeed, one commonly used interpretative tool is the idea that statutes should always be construed in such a way as to avoid conflict with the Constitution if possible.
    3. I think you’re overreading Toobin’s description of Winter, which is available here: http://www.supremecourtus.gov/opinions/08pdf/07-1239.pdf
    That case specifically involved a preliminary injunction against the Navy, rather than a final determination on the merits; in fact, Roberts’ opinion makes a point of avoiding any discussion on the merits. This is an important distinction, because for purposes of determining whether a preliminary injunction should be issued, courts are explicitly required to undertake a test in which they consider whether a plaintiff has proven “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Those last two factors are obviously inherently subjective, and deference to the legislative branch was not really involved except in determining whether there would be a likelihood of success on the merits, a factor that the Court explicitly assumed to be true for purposes of its decision. The point is that this isn’t really an example of judges overreaching to impose their subjective policy preferences since those subjective policy preferences are inherently part of the test. In fact, this case isn’t really a good example of judicial policy making on the appellate level, if only because of the fact that the trial court also has to undertake an evaluation of policy considerations in deciding whether to issue an injunction (although there’s obviously a more powerful precedential effect when it gets to the appellate level).
    4. Without expressing my own opinion on whether I agree with the court’s decision here (I don’t understand the background well enough to do so), it’s worth noting that Toobin’s assertion that this was a 5-4 decision is incorrect or at the very least misleading. While only four justices joined Roberts’ opinion, Justice Breyer and Justice Stevens concurred with the part of Roberts’ opinion quoted above. Justice Breyer (though not Justice Stevens, who would have reached the same result as Roberts) would have nonetheless given the plaintiffs some temporary relief, though less than what they asked. Only Justices Ginsburg and Souter would have clearly ruled in favor of the Plaintiffs. In other words, at most this was a 6-1-2 decision.Report

    • Avatar Kyle in reply to Mark Thompson says:


      I’m curious if you’d say the court generally has a deferential attitude towards the government (specifically DoD & now Homeland Security) when national security interests are involved?

      That’s the (very casual) impression I have, but I’m not sure how much of that is from selective reading and/or the legacy of Korematsu.Report

      • Avatar Mark Thompson in reply to Kyle says:

        Kyle: I suppose it depends in part on just how deferential you think courts should be to the other branches in the first place. For me, I’d say that the courts are generally quite deferential to the other branches – but then again, I’m generally in favor of judicial “activism.” If you think that the courts should always or almost always defer to the other branches, then you may ignore all the instances in which they do so defer and inaccurately perceive the courts as often failing to defer to the other branches. I’d also add that instances where courts defer are likely to garner significantly less publicity, on average, than cases where they don’t.
        All of which is to say that a fair reading of case law would indicate that courts are usually deferential to legislatures and executive decisions.Report

  4. Avatar Tim Kowal says:

    I am troubled by this statement:
    “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.”
    I think there is a “universal decision-making framework” for prioritizing certain kinds of issues, particularly national security issues. Giving deference to national security issues comports with textual, historical, structural, and philosophical frameworks of judicial interpretation. Environmental issues, while they may be codified in statutes and regulations, are not on par with constitutional and natural law imperatives to ensure national security. If we were talking about a comparison with something like mining or dam-building, you’d have a point. But national security is not one of the scraps of paper we toss into the policy hat and pull out at random.Report

  5. Avatar Will says:

    Tim Kowal –

    The question at stake is whether naval battle groups can practice submarine hunting off Southern California. Granted, this does relate to national security, but it’s not as if homeland defense is entirely dependent on these naval exercises.Report

    • Avatar Mark Thompson in reply to Will says:

      Right. Just to supplement this point, it’s worth noting, as Justice Breyer did in his partial dissent, that the Navy had been able to comply without any real problems with 4 of the 6 conditions imposed on it, which is why his dissent would have left those 4 conditions in place. The majority opinion wiped those conditions out. (NOTE: Again, I’m not expressing an opinion as to where I would have personally come down in this case, though the majority opinion strikes me as pretty strong on the law and Justice Breyer’s partial dissent strikes me as pretty pragmatic; I’m less certain about Justice Ginsburg’s dissent).Report