Joel Jacobsen

In Boswell's Life of Johnson we read: "There are (said he) inexcusable lies, and consecrated lies. For instance, we are told that on the arrival of the news of the unfortunate battle of Fontenoy, every heart beat, and every eye was in tears. Now we know that no man eat his dinner the worse, but there should have been all this concern; and to say there was, (smiling) may be reckoned a consecrated lie."

(As for the battle of Fountenoy, here's a description and here's Wikipedia's account.)

Judge Alito told a consecrated lie yesterday.  His opening statement contained this passage:

The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client.

The judge's only obligation -- and it's a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.

The vague concept behind these soothing words is that "the law" exists in some ideal form, floating just out of view of ordinary mortals but visible to the judge.  But of course Alito doesn't believe that.  In practice, and to a significant degree even in theory, Supreme Court justices decide for themselves what the law requires.   To say they "do what the law requires" is for that reason very nearly tautological. 

Within the judicial pyramid, the Supreme Court is - by definition - infallible, even if the Court's infallibility consists solely of its position at the top of the pyramid, the spot where the mystical eye gazes forth from the back of a dollar bill.  As Justice Robert Jackson, one of the most realistic of justices, once said, "We are not final because we are infallible, but we are infallible only because we are final."

Some cases are simple, but many are not.  Most of the time, competing legal rules can be marshaled to point to opposite results, and in some small subset of cases the competing legal rules are equally convincing.  A judge called upon to decide such cases - which is to say, every judge - must resort to a tiebreaker.  The tiebreaker is the judge's core beliefs about the proper role of the judiciary, and of the other branches of government (see post 39), and of the correct techniques of judging, etc.  Those core beliefs constitute one type of agenda, and it's a highly desirable agenda - because the alternative is decision-making divorced from principle. 

In the Supreme Court the role of "tiebreakers" becomes extremely important, because in a certain sense all cases in the Court are "ties."  This is because the Court's docket consists largely of difficult cases, involving legal disputes in which lower courts have reached different results.  But it's also because the justices have the privilege to change the law.   That's what the justices mean when they tell us, over and over again, that they are not an "error-correcting" court.  (See post 8.)   It's more accurate to say they are a "law-correcting" court. 

Because the justices are freed from the necessity of following the precedents of any superior court, they have endless opportunities to prioritize various competing principles of judicial decision-making.  That list of priorities  constitutes a second type of agenda.  All nine of the justices have at least one.

Then again, if you parse Alito's opening statement very closely, you can see that he never actually said that he intended to act in the manner of the idealized judge he describes.  After all, a member of the Supreme Court isn't a "judge" but a "justice", and he didn't talk about justices, did he?  And when he concluded by saying, "And if I am confirmed, I pledge to you that that is what I would do on the Supreme Court", he wasn't specifically referring to his description of the ideal judge, was he?  So maybe I'm wrong to suggest Alito told a consecrated lie.  Maybe he was just being tricky.