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Legal fictions

Obama, Sotomayor and theories of democracy

During the 2005 confirmation hearings for John G Roberts, the chief justice of the US Supreme Court, Barack Obama, then a freshman senator, made the following observation about the role played in the court's decision-making by judges' own convictions on questions of political morality:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 per cent of the cases that come before a court so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 per cent of the cases -- what matters on the Supreme Court is those 5 per cent of cases that are truly difficult. In those 5 per cent of hard cases, the constitutional text will not be directly on point . . .

The legal philosopher Ronald Dworkin cites these remarks in a fascinating piece in the New York Review of Books about the Senate hearings on President Obama's own nomination to the Supreme Court, Sonia Sotomayor. According to Dworkin, they undo the "democratically harmful fiction" that the judgments of Supreme Court justices are made always and wholly in fidelity to the law -- a fiction in which Sotomayor colluded, disastrously so, in Dworkin's view:

Her hearings could . . . have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgements of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

The important question, of course, is what such "judgements of political morality" amount to exactly. By that phrase, Dworkin doesn't mean partisan prejudice, but rather some "general theory of political morality" that would include a view about the "best conception of democracy, including the best understanding of the individual rights that must be secured by law". Dworkin set out just such a theory in his book Is Democracy Possible Here?, which I reviewed back in 2006.