Considerations

A NYTimes.com edito­r­ial says that “[i]ncreasingly, courts are ignor­ing fun­da­men­tal fair­ness and overem­pha­siz­ing rigid rules and tech­ni­cal legal points — in many cases, dead­lines of one kind or another — in ways that under­mine jus­tice.”  It’s not a state­ment backed up with facts or fig­ures, but if true, and I think it might be, the Times is right to call out the courts on a dis­turb­ing trend.

Why do I think it is likely true? 

Two rea­sons.

1. Wit­ness the Sen­ate con­fir­ma­tion hear­ings of Sonia Sotomayor and John Roberts before her.

Sen­a­tors obsessed about how the prospec­tive Supreme Court jus­tices would treat prece­dent in decid­ing polit­i­cally charged cases involv­ing gun rights, abor­tion, etc.

John Roberts called him­self “an umpire” – some­thing he’s proven to be far from in his Supreme Court jurispru­dence.  Sonia Sotomayor repeat­edly invoked respect for prece­dent: the vaunted but hardly rigid prin­ci­ple of stare deci­sis. As prospec­tive jus­tices, they had no choice but to claim that they would not depart from prece­dent.  It’s the only answer that would simul­ta­ne­ously get them con­firmed while allow­ing them to avoid reveal­ing their per­sonal views on con­tro­ver­sial subjects.

Any judge in a lower fed­eral court is likely to take the same tack even while sit­ting on a cir­cuit or dis­trict court bench.  Nor is this a bad thing: Lower fed­eral courts are likely to nar­rowly inter­pret the law so as to avoid over­reach­ing.  After all, who wants to be the judge that gets over­turned by the Supreme Court?

2. The Court itself may be lean­ing towards more mechan­i­cal approaches.

This is hard to tell, as the Supreme Court has seen thou­sands of cases since the incep­tion of our coun­try.  Fur­ther, dis­sents tend to point out the mechan­i­cal appli­ca­tion of the law, regard­less of the fac­tion of the court that is in the majority.

Call this a gut feel­ing, as it would be a pretty big (if inter­est­ing) research project to dis­cover, but it seems that an “ide­o­log­i­cally con­ser­v­a­tive” (and I use that term with cau­tion) court as we sup­pos­edly have now is more likely to favor mechan­i­cal tests than an “ide­o­log­i­cally lib­eral” court.

If that were true, it would rein­force the cau­tion of the lower courts.

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