Judge Posner has a column in the Harvard Law Review forum on the issue of statutory interpretation. Having drafted legislation and worked around judges for quite some time, I highly recommend it.
He makes the case that the articulated canons of statutory interpretation are, by and large, pretense. They depend on legal fictions about how the law is made and how the law is applied. In reality, a judge is going to do his or her best to understand what the legislature was trying to do and apply it to real world situations in order to obtain reasonable results. Human brains don’t function by programming in a set of interpretative instructions, then plugging in particular data. The rules of judicial interpretation — pick any one of them that strikes your fancy — have so much wiggle room that the decision can come first and the interpretative justification made to follow.
[I]interpretation is a natural process; we do it any time we hear someone speak and any time we read anything. Interpretation can be difficult but it isn’t made easier by bringing a formal apparatus to bear; it is made easier by familiarity with the texts to be interpreted. And cases must be decided even if interpretation is impossible and the judges must bluff their way to a decision — which is often.
This was an insight I was somewhat slow to grasp. More than once, I convinced myself that victory was certain because my legal logic was impeccable. Here is the law, here is how you have to interpret it according to the rules. Forget about the people involved and the consequences. The law is the law. Now give me my judgment.
But judges are real people operating in the real world. And the law isn’t some game. In a game, there is no existence outside of the rules. You play according to the rules and follow the rules to the dictated outcome. If it was a fun game, you play again. If not, you go do something else. Life and the law aren’t like that, and so you’ll find that judges more often than not get blind to the literal and even the obvious when the outcome is arbitrary or appalling. And, if they have the time and inclination, they can usually justify their seeming departure from the law with some rule of statutory construction or other.
I’m not saying this to disparage judges. I think, almost to a person, they are trying to apply the law in a reasonable and fair way. But I do tend to agree with Judge Posner that justification based on technical rules of construction tend to be something of a parlor game.
I totally agree that too many judges find a result they want and reason backwards from that result. But that doesn’t make it right. The rules of statutory construction are pretty clear and as black and white as any such rules could be. That Posner is suggesting something otherwise is disconcerting.
Mr. Ogden:
Judges don’t like fixed law. Judges like the ability to impose whatever outcome they want. When the legislature has no ability to check the courts or to repeal court decisions, judges get away with whatever they want. The law becomes merely a suggestion.
Thomas Jefferson wrote:
“Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction].”
Indy, I think your characterization of judges is overly broad. There are judges that will ignore dispositive case law or statutes, but they are are frequently overturned by the Indiana Court of Appeals and the Indiana Supreme Court.
In my analysis from reading hundreds of Indiana Appellate Cases, I believe that the Indiana Appellate Courts fawn obsequioulsy before the Indiana Legislature and ignore their obligation to check the legislature when their enactments run afoul of Indiana Constitutional proscription.
Might we be thinking about vouchers?
You are correct, Stuart. That decision was an abomination. But when a C- GPA in law school is the price of admission to the Indiana bench, it is easy to understand the low quality of the Indiana judiciary.
Find “travesty” in the dictionary, and you should find that decision as an example.
The Utah Judge that took the foster care child from a lesbian couple, and who later rescinded it because of a public outcry was something else. The NYT article said that he opined “research has shown that children are more emotionally and mentally stable when raised by a mother and father in the same home.” I suspect that he has read no such “research”. He probably based his conclusion on an evidence-free opinion and tried to intimidate his readers with the words “research has shown”–in an area where there is actually quite a bit of research to show that he was only bluffing–and his judgment was probably not based on law either. He probably thought he could get by with such arrogance from what he sees in the mirror when he wears his robe: that “I’m the judge”, when he is accustomed to getting by with statements, even when he has an obviously uninformed opinion.. Unfortunately for him, the American Psychological Association, which actually has access to such research, was listening and called his bluff. I wonder how much law this guy really knows.
Scares me to think how much you legal guys see of this sort of nonsense..