23. Three Sides to Every Case

No one seriously thinks that judges are neutral.  That's why we talk about Scalia and Thomas as being "conservative," while O'Connor and Kennedy are "moderate" and Stevens, Ginsburg and Breyer are "liberal."  Yet all such classifications rest on the unexamined assumption of judicial disinterestedness, that is, that the judges are engaged in deciding a dispute between the parties with no thought to themselves.   The same assumption underlies even the most sophisticated attempts to explain judicial decision-making, such as Lawrence Baum's The Puzzle of Judicial Behavior  and  Jeffrey A. Segal & Harold J. Spaeth's The Supreme Court and the Attitudinal Model.

But disinterestedness ought to be a suspect assumption.  For example, anyone who accepts clerical disinterestedness as a given will have a difficult time understanding the pedophilia scandals.  Similarly, anyone who works from the assumption that corporate bosses devote their efforts to maximizing shareholder value will be unable to explain insider trading, fraudulent accounting, off-the-books subsidiaries, and all the rest.  And anyone who accepts on faith that elected representatives seek only to do the right thing by their constituents will have a hard time accounting for Duke Cunningham.

Everyone understands that pedophile priests, corporate gangsters and crooked politicians are selfish.  And yet "everyone" assumes that judges, alone among human beings, are immune from selfishness.  (Corruption is a different matter.  For now I'm talking about judges who aren't on the take.)

Even when we accuse judges of bias (and the familiar classification of judges into "conservatives" and "liberals" is just such an accusation), we base the accusation on the idea that they favor one side over the other.  The idea is that even when they put their thumbs on the scales of justice, judges do so to help or hurt one or the other party, not to benefit themselves.  Even their faults, in the conventional way of looking at things, are selfless faults. 

But is this a realistic way of examining the behavior of any human being?  Judge/Professor Richard Posner once wrote a paper entitled "What Do Judges Maximize?  (The Same Thing Everybody Else Does)".  When we ask what judges maximize, we need to consider why they became judges in the first place, and I don't think any practicing lawyer has much doubt about the answer to that question.  Lawyers become judges because they like power.

This isn't a snarky remark.  Wielding power is a judge's job description.  It's what a judge does.  There's nothing worse than an indecisive judge.  Far better to have a dim-witted but decisive judge than a judge who changes his mind with every bench conference, or who reflexively splits every baby (the horrific cliche should bring to mind not the Solomon of the Bible but the Schlomo of Joseph Heller's God Knows, narrated by King David: "I'll let you in on a secret about my son Solomon: he was dead serious when he proposed cutting the baby in half, that putz. I swear to God. The dumb son of a bitch was trying to be fair, not shrewd.").

Because wielding power is a judge's job description, a willingness, or rather eagerness, to exercise power must be the personality feature that impels a person to become a judge.  And that suggests where we should be looking when we ask what judges maximize.  They seek to maximize their power.

Again, this isn't a negative thing, in itself.  An honest person who runs for the city council is also seeking to maximize her power.  So is the dedicated worker putting in for a promotion.  But no matter how sincerely we might believe that all decisions made by ourselves are categorically better than decisions made by anyone else, there comes a point where the pursuit of power becomes an end in itself.

Three justices of the Supreme Court were remarkably open about this in a case that's once again been in the news recently, Planned Parenthood of Southeastern Pennsylvania v. Casey, the case that upheld Roe v. Wade.  Judge Samuel Alito was one of the panel of three judges that considered the case in the Third Circuit.  A joint opinion by Justices O'Connor, Kennedy and Souter read:

 [T]o overrule [Roe v. Wade] under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. ...  The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. ... A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.

This was, naturally enough, taken then and forever afterward as a pro-Roe opinion.  But it wasn't.  It was a pro-Supreme Court opinion.  The three justices' whole point was that they were adhering to precedent in order to avoid a diminishment in their own institution's authority and legitimacy.  They didn't line up on the pro-choice side against the pro-life side, but on the contrary identified the Court's own interest in the dispute. 

True enough, they also declared that preserving the Court's authority and legitimacy was in the national interest, and went so far as to say that the Court's authority and legitimacy were necessary to ensure the rule of law itself.  But those were merely justifications for their choice.  The point, made as clearly as the justices could make it without sounding crass, was precisely that they chose not to resolve the conflict between the parties.  Rather, they resolved the conflict between the Pennsylvania Legislature and the United States Supreme Court. 

Casey is exceptional only because the justices were so explicit about their motivation.  But it makes the point: every case has a minimum of three sides.  There's the plaintiff/prosecution, the defendant, and the court itself.  Any explanation for judicial behavior that considers only the first two sides is, for that reason, so inadequate as to be pointless.