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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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« 399. My, aren't we special | Main | 397. The power of the wig »
Tuesday
27Oct2009

398. Regal condescension

Over the summer New Scientist reported on research by Don Moore about the effect of the advice-giver's confidence on the willingness of humans to accept the advice:

EVER wondered why the pundits who failed to predict the current economic crisis are still being paid for their opinions? It's a consequence of the way human psychology works in a free market, according to a study of how people's self-confidence affects the way others respond to their advice.

The research, by Don Moore of Carnegie Mellon University in Pittsburgh, Pennsylvania, shows that we prefer advice from a confident source, even to the point that we are willing to forgive a poor track record. Moore argues that in competitive situations, this can drive those offering advice to increasingly exaggerate how sure they are. And it spells bad news for scientists who try to be honest about gaps in their knowledge.

It explains a lot about TV and talk radio, doesn't it? 

But also about Victoria's Chief Judge Marilyn Warren.  By saying her absurdly empty things in a tone of haughty, indeed regal, condescension, she successfully cowed an Australian political editor.  (See post 397.)  But there was a real meaning half-hidden in her words, one that was expressed more forthrightly by the Washington Supreme Court when it construed a statute containing this definition:

"Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency.

That definition, the state's highest court found, did not encompass courts. (That's a link to the dissent, because it's the only opinion of three that manages to maintain contact with reality--the TZ effect makes links to the other two opinions unstable.)

State courts aren't state agencies in the same sense that judges aren't public servants (see post 397), and for the same reason that federal courts refer to the prosecution as "the government," as if they were something else.  (See post 267 and post 13.) 

Such statements do more than express the judges' vanity.  They also relieve judges from the cognitive dissonance of wielding undemocratic political power in a democratic polity.  Judges can tell themselves that, although they exercise the power of the polity, yet their power isn't political, because it's legal, see?  It's an entirely different word.  I mean, except for the "al" and the other "l" they have nothing in common.

It's telling that Chief Judge Warren referred to the "fundamental constitutional principle upon which our democracy is built."  Whenever judges start talking about democracy it means they've become self-conscious on the subject, which should always make you wonder why.

The Washington Supreme Court, similarly, explained that by declaring themselves to be something other than a state agency, office, bureau, division, department, etc., they were humbly acquiescing in the will of the Legislature, which, after all, hadn't seen fit to amend the statute in order to correct the implication of an obscure dictum from a 1984 decision.  (What makes you think I'm making fun of their reasoning?) 

AuthorJoel Jacobsen | Comment1 Comment | | |
DateTuesday, October 27, 2009 at 10:30PM in , , ,

Reader Comments (1)

I'm reminded of H.L. Mencken: Judges are law students who mark their own examination papers.
October 29, 2009 | Unregistered Commenterneilalice

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