The Proper Role of Judges: Compatible with Compassion?
Richard Garlikov

With President Barack Obama’s nomination of Sonia Sotomayor to the Supreme Court, a controversy has broken out (as usual and predictable) over the proper role of judges in our particular constitutional system of government.  President Obama has said he wants to appoint a justice who not only has all the legal expertise necessary but who understands with compassion how legal decisions impact the lives of ordinary people, particularly those who are disadvantaged within the system, usually because of economics, gender, race, educational status, age, or country of origin (in the case of immigrants).  Judge Sotomayor has said she has always tried to take those things into account in rendering judicial decisions and believes that her background enables her to do that, because she was the child of immigrants raised in a project in New York, was raised by her mother after her father died when she was young, with her mother working two jobs in order for her to attend good schools.

The controversy arises because the comments by President Obama and Judge Sotomayor are construed by many to mean that her decisions have been and will be in favor of the least advantaged rather than on the merits of their cases dispensed impartially under the law.  And although supporters of Judge Sotomayor quickly point out examples where she ruled against women or immigrants or minorities, opponents worry that as a Supreme Court justice, she will be under fewer constraints to do so in the future.

While I cannot speak for either President Obama or Judge Sotomayor in terms of what they have in mind, I would like to articulate a reasonable position that is compatible with their words.  If this is the position they mean, all the better, but if not, it is still an important way to understand the proper role of judges in our system of government.

First, the main and easiest point is that a judge can understand the impact of his/her rulings on people in a compassionate and sensitive way without thereby ruling in favor of the least advantaged when their case is not supported or supportable under the applicable laws.  One would in fact hope that judges understand the consequences of their rulings for both parties who come before them in a case.  Since obviously they cannot always rule in favor of both, that understanding does not then by itself favor either litigant.  The law should be the determining factor.

However, courts are set up not only to determine cases of guilt or innocence, nor of right and wrong in civil cases, but they also have to determine whether the wording of a law applies to certain acts that are borderline cases and they have to determine whether laws are constitutional in the first place.  And they also have to abide within reason to previous rulings that have set precedents.  When Judge Sotomayor said during one panel discussion that appellate judges determine policy, she did not have to mean that judges make law in the way legislatures do by their own creations, but that through their rulings appellate judges set precedents which in effect determine how the law is to be understood and used in the future, if constitutional, unless a legislature amends it.  Plus, in the case of conflicting statutes and precedents that may both apply to a given case, judges determine which takes priority.  In constitutional law cases, of course, the Constitution is to take priority, but judges have to decide whether there is a conflict in such cases.  All these activities fall to the judiciary and they do determine policies within the confines of existing law.  Judges do not have to create whole new laws in order to make rulings which will have a profound impact on how existing laws are understood.

Of course, there are different judicial philosophies and theories about how judges ought to interpret law, and those arguments and lines of reasoning fill very thick books on philosophy of law.  While I think the different theories are not necessarily as conflicting as they are said to be, and while I think they can be resolved, there is no need or much point in going into that here.  What is important for this discussion is that laws are written in such ways, and circumstances after they are written change in such ways, that people often end up in litigation because there is disagreement about whether an action falls under a certain law or not, or whether if it does, it also doesn’t fall more within the province of a different and law with higher priority, which would dictate a different ruling in this particular case.  Judges have to determine that -- particularly appellate and supreme court judges. 

What tends to happen is that those who disagree with a judicial ruling or its reasonableness claim the judge is making law; and those who agree with it say the ruling conformed to the law and did not make new law.  That is simply a semantic issue meant to sway those who are not going to take the time and effort to understand the nuances of the ruling and the reasons given for it.  The fact that rulings often have a majority and a minority opinion and thus majority and minority rationales, does not mean that this involves majority rule in making a law, but simply in interpreting it or understanding it as it is currently written.  If legislators could write laws that were so clear that borderline cases did not occur and if they could write laws which never conflicted even in appearance with the Constitution or with previous statutes or with other states’ laws, there would be no need for judges to have to decide such cases.  But given that does not tend to happen, judges are forced into having to interpret laws and thus within boundaries determine practices that are to be considered legal or illegal.  Within those boundaries, that is to determine “policies” within a manner of speaking. And no matter which way a judge decides, it is setting precedent and determining policy.  The practice is unavoidable and inescapable whether one is giving a conservative, liberal, or both or neither ruling.  Any and every ruling which stands sets precedent and in that sense determines policy until and unless a legislature with the authority to change the law does so.

There is also the problem of a policy’s not by itself being illegal, but its consequences in conjunction with existing (other) conditions bringing about an illegality.  In discrimination cases, for example, there is the commonly understood concept of de facto discrimination even though no laws are by themselves broken.  For example, when economics and social mores were such that black citizens could not get jobs that would pay them enough to be able to afford to live in decent neighborhoods with decent schools, the fact that schools were not legally segregated did not mean there was not de facto segregation that was just as bad.  The question is whether someone from the existing majority or the advantaged class would be able to recognize such de facto discrimination as readily (if at all) as a person from a class who has seen or suffered such kinds of cumulative or chain-like multi-causal discrimination.  It seems from past decisions, comments, and history that members of advantaged classes are quite often unable to see these forms of discrimination – whether it is seeing physical abuse of wives and children as being more than just “private” family matters, or seeing that information in social situations that excludes women or minorities, gives “accidental” privileged important information with economic and power public consequences to those who are allowed into the group or “club”.  I don’t know the details in the firefighter promotion case that Judge Sotomayor ruled on which has caused the reverse discrimination furor, but it does not follow from the fact that there was a fair test given for promotions that the entire promotion process itself was fair.  If, for example, minorities were systematically excluded from positions of being able to learn on the job what other learned, then it would not matter that the final test was itself objective and in some sense fair.  It is not fair or sufficient simply to hold that “Anyone who has the right knowledge can get the job” means there is no discrimination if it is true that prior discrimination against a group who has the ability to learn means they are not permitted ever to be in a position to be able to get the right knowledge.  It is the entire process that must be fair, not just the final or some individual steps in it.  Is a person advantaged in the system likely to see whether the entire process is fair or not?  History seems to indicate at least on the surface that members of advantaged groups do not tend readily to see unfairness or discrimination that victimizes others; and that if they do see it, they are not likely to notice what they see or appreciate its significance.

But there is one more issue which is very significant that is involved in all this.  Laws in our country are intended, in some sense, to be fair and reasonable.  They are not always either, but in some way they are intended to be.  Even when legislators pass egregious laws, they usually try to defend their decision, rather than to say something like “We can do anything we want, because we are the majority; and this is what we decided to do, and we don’t care whether it is fair or not.”  The closest they come to that is saying after an election that they had a mandate from the majority of voters to pass a certain law.  And a mandate, whether imaginary or not, is considered at least to constitute some sort of moral or reasonable grounds for passing the law. (I am calling a mandate “imaginary” when it is clearly not a, or the, significant position for which a candidate was elected but was one part of his/her platform, so that even if no voters actually agreed with the candidate on that issue, they voted for him/her anyway on the basis of other positions on other issues. For the candidate to take his election victory as a mandate for each of his/her positions is naïve at best and disingenuous at worst, particularly if there is reliable polling data about the specific issues that shows otherwise.)

What happens sometimes though is that legislatures pass laws that have unintended adverse consequences for a portion of the population.  Since the Constitution and other statutes may conflict with that aspect of the law that creates the adverse consequences, people bring suits hoping to have a law that affects them adversely to be ruled either unconstitutional or at least to be not the determining statute for a particular act because there is a law that is more directly related.  Some of the arguments for opposing the applicability of a particular law are more reasonable than others, but that is a determination for the courts.

It seems to me in cases where allowing a law to stand and be interpreted in a given way will cause an unfair, morally unjust, and unreasonable burden on one group, particularly a politically powerless group, then it is reasonable for attorneys and judges to rule against that law if they can in any reasonable way find it to be in conflict with the Constitution or with any other statute or precedent.  And while this may lead in some cases to far-fetched interpretations, the idea or principle itself is not wrong, because laws are not sports or games in which it doesn’t matter ultimately whether the rules are the most fair or sensible or not or whether an action that meets the letter of the law or rules meets the spirit of the game or not.  The preamble of the United States Constitution itself states the purpose of the document:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

And it would seem that the reference to establishing justice means justice in some moral sense, not simply in the sense of applying consistently to everyone who chooses to participate, as in the way the rules of a sport or game apply.

But even in games and sports where fairness is only about treating everyone the same under the rules, there are cases where the rules themselves are not morally just or right within the spirit of the game. I cite two cases in particular in my writings about this sort of thing to point out that formal systems which do not allow for reasonable corrections based on judgment will often have clearly wrong, sometimes egregious, results. 

When Dean Smith introduced the “four corners offense” in college basketball, he basically turned basketball into an elaborate, sophisticated game of keep-away.  He had recruited great ball handlers and foul shooters, so that once they got ahead in a game, they could go into an elaborate stall that made it impossible for the opposing team ever to get the ball in order to score unless they fouled one of Smith’s University of North Carolina players, who then promptly made his foul shots.  While there was a certain amount of tension involved in seeing whether any team could defeat this style of play, once it became clear during a game they couldn’t, the outcome was predictable and lost its excitement as a “basketball” contest.  After that season the NCAA invoked a shot clock, and has used one since, so that the four corners offense could no longer be used.

The second case involves instant replay in college and professional football.  The reason for ever even wanting some form of instant replay review of officiating is very simple; once the advent of instant replay (particularly with slow motion and clear stop-action) became possible and popular in broadcasting sports on television, it became clear that referees on occasion made an egregious error in calling a play and that the entire viewing audience could clearly see the mistake over and over, and that it might subsequently even be shown on news broadcasts, particularly if it happened in a game with national, or more important than usual, significance.  So the idea was to allow some formal mechanism within the rules to allow for the overturning of such a bad call.  They had to have a formal mechanism because sports are not only governed, but defined, by rules, and without a rule to go by, decisions cannot just be made in sports, no matter how much the decision might conform to common and judicious sense.

Unfortunately the rules that were chosen lose sight of the purpose, and often involve the coach having to make a challenge to stop the game and have the play reviewed by officials on the field who have to run over to a special monitor to see the play from different angles and then make a ruling whether to let the call stand or to override it.  That takes time and slows down the game.  It also means that if a coach uses up his few challenges, then any play after that which is called incorrectly has to stand, just as it did prior to the instant replay rule.  So again, bad calls, some of which determined the outcome of a game incorrectly, can stand.  It seems to me that the correct instant replay rule would be one that allows an official in a booth who sees what television spectators see to be able to stop play and override bad calls with a minimum of time spent interrupting the game.  Only clear cut mistakes need to be rectified, and they should be able to be rectified even if another play ensued subsequent to the play in question because the team used a “hurry up offense.”  That is pretty much the way it is done now in the last two minutes of a half, but there is no reason to believe that bad calls in the last two minutes of a half are somehow less determining of victory than bad calls in the earlier part of a half even though there may then be more time to overcome it.  But a team should not have to overcome an incorrectly awarded touchdown just because it has time to do that.

As in these cases in sports, the law is a formal system that sometimes does not have a mechanism for correcting clear mistakes in moral justice because no one anticipated the kind of mistake the law would foster or permit.  Clear evidence of a defendant’s guilt or of his/her innocence may be excluded from a trial because of some technical point of law that defies common sense and was not intended to apply to such a case, but whose wording mistakenly makes it apply. 

Fortunately in many cases in law, because we have so many laws and precedents, there is often a means of formally overriding a law whose consequences (particularly whose unintended consequences) offend moral common sense.  That is the appeals process which allows argument that a law is unconstitutional or in conflict with a more appropriate law to govern this particular case.  And it seems to me that in such cases, one would want a judge who understands the morality of the issue (or the “spirit” of the law) as its consequences affect people, regardless of who is affected.  It would not do to have a judge who is totally insensitive to the consequences of a law for anyone or for just one side of the litigation and who sees no problem with simply saying it does not matter what the consequences of a law are, that “the law is the law”.  Obviously, if there is no reasonably overriding law or precedent for the judge to utilize, then the bad law and the bad consequences must stand in a formal system until overridden by the legislature’s passing a new law.  But in certain kinds of cases involving people’s rights, the ninth amendment of the Constitution can almost always come into play, at least if it had not fallen into disfavor and lack of use. 

When the founding fathers wrote the Constitution, they were concerned that even with the protections built into it against the tyranny of (simple) majority, many were still concerned that a Bill of Rights needed to be passed that stated what the limitations could be of laws passed by Congress (and then subsequently by any legislatures).  But then others worried that if such a Bill of rights was passed explicitly stating which rights citizens had that were inviolable by government, the government would take that list of enumerated rights and say they could invoke laws that violated other “rights” or actions and activities that were accidentally left out because it is difficult or virtually impossible to sit down and make up a complete and accurate list of all and only those things which common sense would hold government should not be able to control in certain ways.  So there were two fears about a formal system of law – that it would allow abuses of moral rights, and that enumerating the moral rights which cannot be abused implied that other moral rights were okay to abuse.

Thus was born the ninth amendment to the Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Theoretically at least then, if one can make a legitimate, reasonable, justified case that a law unfairly abrogates someone’s moral rights (or in today’s language often expressed as someone’s “human rights” though that may be a much narrower subset of moral rights), that law should be declared unconstitutional.  It is not that simple in practice, of course, but it is an issue that deserves serious consideration and discussion.  And if it turns out to be as I am presenting it, then in those cases where it applies, judges are needed who compassionately understand the moral implications and consequences of laws for people to whom those laws apply.[1]  That should not only be allowed for appellate court judges but should be expected or required of them.  And, as I said earlier, however, that does not mean that when two parties disagree and bring litigation that it means the more disadvantaged person in terms of economics, race, gender, etc. has the most rights or is the only one who has rights or is the one to whom this particular law applies least, most, or not at all. 

But if the choice is between having judges who understand with compassion how laws affect people and judges who do not have that understanding or compassion, the choice should be clearly in favor of those who have it, as long as they understand law and our system of government, of course and make their rulings in reasonable conformity with it.

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