Things that make me go “Huh!”
By Thoreau
While I may have an opinion on the basic, bigger issues underlying the Ricci case, I have no interest in rehashing those food fights. I do, however, note that one might think a rule is unfair but nonetheless apply that rule because it’s, well, the rule. Certainly there are policies at my school that I might consider either too inflexible or too low of a standard or too high of a standard, but I apply those policies because they are the rules*.
So I really appreciate Julian Sanchez saying this:
Ironically, we see a lot of putatively conservative strict constructionists who have no idea of the actual legal issues in play confidently asserting that Sotomayor must have made the wrong decision because the outcome is manifestly unfair, which is supposed to be what judicial activists do — ignore the law and just push a “fair” outcome.
Now, Sotomayor’s ruling in the Ricci case was certainly overturned by a higher court, and so one could argue that that alone indicates that Sotomayor ruled incorrectly. OTOH, if the higher court that overturned her was overturning the precedents and standards that she was relying on, rather than saying that she incorrectly applied those precedents and standards, then it’s harder to argue that her decision was wrong.
For instance, let’s say I refuse to let a student make something up because university policy makes no allowance for that situation, and I am (for obvious reasons) reluctant to use my discretion to be significantly more lenient than university policy requires. Suppose that student appeals to higher authorities, who decide that policy should make allowance for that situation. Certainly my decision has been overturned, but it doesn’t mean that my decision was wrong. It means that I correctly (within the limits of my discretion) applied a rule that was subsequently changed.
This is not a defense of Sotomayor. Without knowing more about the Ricci case and the specifics of the precedents she was relying on in her ruling and how those precedents may be affected by the latest SCOTUS ruling I cannot defend her ruling. I can, however, say that any unfairness in the outcome is not a sufficient basis for concluding that she ruled poorly.
*Despite my screen name and my respect for dissent I think that battles need to be chosen. I note that my namesake went to jail once, rather than constantly going to jail for each and every injustice in the world.
Comment by Jeff Darcy —
July 18, 2009 @ 4:19 pm
If you believe, in your scenario, that the university should make allowances for the student’s situation, where does your duty (if any) to drive change of the policy figure in? Under what conditions would it be correct, or even morally necessary, for you to act unilaterally in defiance of the policy, much as a jury might defy the law in a nullification case? One of Thoreau’s legacies was that of civil disobedience, which doesn’t seem to be considered in the above.
I’m not trying to give you a hard time (this time). I’m genuinely curious how these issues relate to your statement that the unfairness in the outcome is not a sufficient basis for concluding that she ruled poorly. In the specific domain of racial-discrimination jurisprudence, the principle of unfairness (”disparate impact”) alone justifying action despite conflict with other principles seems to be quite central.
Comment by Ceri B. —
July 19, 2009 @ 10:39 am
It bears repeating some context. The ruling wasn’t Sotomayor versus the Supreme Court. It was Sotomayor and all of the other appellate judges, and 4 members of the Supreme Court, against 5 members of the Supreme Court, including several notoriously prone to caprice in favor of the groups they want to protect. Sotomayor is not an outlier, and I think that matters in making our personal judgments.
Comment by joe from Lowell —
July 19, 2009 @ 12:40 pm
Jesus, this lie again.
It was a 5-4 ruling. Of the 21 judges – trial court, appeals court, Supreme Court – that heard the case, 11 agreed with Sotomayor.
Comment by joe from Lowell —
July 19, 2009 @ 12:44 pm
Whoops, not correcting you, Ceri, agreeing with you.
Jeff Darcy,
I don’t think we want sitting judges to engage in deliberate violation of the law while sitting on the bench and producing rulings. The concept of civil disobedience seems particularly ill-fitted towards analyzing an appeals court ruling.
Comment by Jeff Darcy —
July 19, 2009 @ 3:51 pm
I don’t think we want sitting judges to engage in deliberate violation of the law while sitting on the bench and producing rulings.
I think you’re interpreting the “concept of civil disobedience” rather narrowly, and wrongly. The concept behind civil disobedience, as distinct from its specific application, is of challenging authority. When the authority is statute, or most particularly the constitution, a reasonable case might be made that the challenge is too disruptive. When the authority is precedent (as in Ricci) or university policy (as in Thoreau’s example) such arguments are much less convincing. Judges at all levels challenge the boundaries of precedent all the time, and they are right to do so because a precedent set in case X very well might not apply to any other case Y. Seeking a change by means other than direct challenge might take too long, and in the process cause harm.
“Just following orders” doesn’t cut it. We’ve seen where that leads, haven’t we? The person responsible for applying a policy to a particular circumstance, when the policy might have been made without consideration of that circumstance and where its application might cause harm, can’t avoid moral responsibility that easily. There must be some cases, even for judges, where direct defiance deserves consideration. The concept behind civil disobedience is not ill-fitted toward analyzing an appeals court ruling. It’s necessary for such analysis, anywhere outside of the prescriptivist (i.e. authoritarian) fringe.
Comment by TGGP —
July 19, 2009 @ 4:16 pm
I have post on the subject: I don’t think Ginsburg’s dissent was that embarrassing.
Reading it now gives more of a damning-with-faint-praise effect than I intended.
Comment by All Your Summer Songs —
July 20, 2009 @ 12:25 am
So many words in this post is unfair to Ricci’s dyslexia.
Comment by joe from Lowell —
July 20, 2009 @ 10:14 am
No, Mr. Darcy, I am not defining civil disobedience wrongly. That term has a definition – the willful violation of the law.
Judges and other agents of the state are rightly bound by the laws. Shall we validate a judge ignoring the Lawrence vs. Texas precedent because he thinks imprisoning gay people advances justice? When an agent of the state violates the law, he is bringing to bear the power of the state behind his actions – precisely the opposite of civil disobedience, which strives to alter public opinion by very visibly being on the receiving end of state power.
When judges do not apply a precedent to a new case on the grounds that the facts do not apply to case Y, they are following the law in doing so, usually the principles elucidated by case and statutory law.
I’ll see your Godwin violation and raise you: the judges in Weimar Germany frequently violated the law in reaching verdicts and handing out sentences to Nazis and other nationalist reactionaries who’d committed violent crimes, because they decided that they were advancing justice and rightness by doing so. As you say, we’ve seen where that leads.
BTW, the correct term for what you call ” prescriptivist (i.e. authoritarian) fringe” is “just about everyone except you.” Believe it or not, a pretty good chunk of the public thinks that judges should follow the law in their rulings.
Comment by Jeff Darcy —
July 20, 2009 @ 8:30 pm
“the judges in Weimar Germany frequently violated the law in reaching verdicts and handing out sentences to Nazis and other nationalist reactionaries who’d committed violent crimes”
…and, according to you, they were in the wrong. Thanks for making it unnecessary for me to waste my time further.