Defending "Principled" Democratic Judging

In a post from a few days (and, like, a thousand entries) ago, Emery raised some significant points of contention with Publius's call at Legal Fiction for a "process model" of democratic judging, the idea that judges should intervene as activists only when the political process itself is broken in some fundamental way. Emery defends a messier model of "moral intuitionism," one that would, in good Emersonian or pragmatist fashion, avoid the perils of an overly consistent and ideological jurisprudence. His argument harks back to the "legal realism" of Oliver Wendell Holmes, who commented that

The life of the law has never been logic: it has been experience. The felt necessities of time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

There's a lot to be said for this argument, especially from the standpoint of descriptive honesty. From the scholarly view, Emery and Holmes surely offer a better analysis of what judges are actually doing than those commentators who seek overly logical explanations. Why is Scalia's "originalism" so selective--applying to federalism but not executive power, privacy but not equal protection? How could you explain Bush v. Gore on the basis of "logic"? Why does Scalia get his panties in a twist defending crossburners but not flagburners? Intuition. OK, that last example wasn't really fair: Scalia votes on the "free speech" side on both issues, even though I'm pretty sure he personally despises flag burners. So maybe theory counts for something now and then. And maybe we're better for it, as we were for Scalia swallowing his tongue to support flagburning in Texas v. Johnson, and as we would have been if the Kingmaker Five had actually bothered to read the Constitution before they endorsed the bloodless judicial coup of 2000.

In short, "principled" judging is indispensible from a practical perspective, even if it often fails to restrain judges from chasing their worst instincts, and even if sometimes leads justices (like Scalia and Thomas) to get up on their rhetorical high horses even as they're voting for something repellant, like the idea that George Bush is a monarch, beeyatch.

But there's another equally important reason that Democratic judges and legal theorists need to think through a consistent and principled theory of judging, one that could answer the conservative "originalism." In a word: politics. Simply put, originalism has been a great rhetorical weapon for the right over the last generation. Of course, we know their theory is mostly B.S., a way to dress up ill-conceived reactionary ideas in fancy clothes ("the founders didn't think _____________ [insert liberal idea here: economic regulation, privacy, racial equality, voting!] was important, so why should we?"), while conveniently ignoring all those places where the founders were farther to the "left" than most contemporary liberals (religion, search and seizure, executive power, etc.). But having a theory like originalism makes conservatives look principled, a great political advantage. You can't rally the shock troops without a flag. The most prominent liberal counterpart in recent years--the "living constitution"--sounds way too squishy to compete. Or, to put it another way, the living const. has been largely discredited by two issues, abortion and death penalty, where it seems unprincipled and expedient.

In general, I'd say that liberals need to disavow "activist" approaches. We've been moving toward an activist right-wing court for decades now, and when Stevens dies the critical mass will finally be achieved. Get ready now with a principled theory of democratic restraint, I say, and use it as a bludgeon. Publius's post goes a good bit of the way toward that goal, and he's building on important legal theorists like Holmes (who was less "intuitionist" here than the quote above might indicate) and John Hart Ely, whose Democracy and Distrust was the best book I read in grad school on jurisprudence.

Publius's question is this: when should judges defer to elected bodies, and when should they intervene more aggressively? As Democrats, we need to trust elected bodies the vast majority of the time, even when we don't like the outcomes. But when the process is broken (and that's a fairly high bar), there are grounds for narrow activism on the basis of democratic principle. Hamdan is a great example. The court didn't decide what should happen to Hamdan, they demanded that Congress set out procedures for trial that accorded with US law and treaty obligations. On the current court, Breyer is working toward this kind of restrained democratic jurisprudence. I hope he's just the beginning.