The Hard Cases Are Hard


Ramesh Ponnuru takes issue with what I think is a fairly banal David Brooks point about how judges’ background and experience will probably alter their thinking about cases:

Without wishing to take issue with the abstract point Kahan is making—surely it’s true that different judges come to different conclusions because they assign different weights to the various facts involved—couldn’t a third judge “perceive” that the Constitution, properly interpreted, doesn’t actually empower him to balance, or say anything at all about, the schools’ concerns about security and the girl’s psychic needs? And wouldn’t Brooks’s observations about judicial psychology apply a lot less to a justice with that mental “model”?

I appreciate that the rhetoric of embattled conservative judges waging a lonely battle on behalf of “the law” against a cohort of subjectivists is politically useful, but I wonder if folks on the right really believe this stuff.

The whole essence of controversial appellate decisions is that the constitutional or statutory provisions at issue aren’t clear. The super-clear issues don’t get litigated at all. Congress isn’t going to pass a bill saying “Christianity is now the established religion of the United States.” But questions arise that people disagree about because legal standards are full of abstract terms. There are protections from “unreasonable” searches. Thanks to the existence of precedent, judges don’t start de novo asking individually weather or not any given search is reasonable. But new, difficult cases arise when circumstances arise that aren’t covered by the precedents in an unambiguous way. What “the Constitution” says is going to turn on how a judge balances the different considerations in play.