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Some high court justices hold onto myth of objectivity

July 16, 2010|By ALLAN POWELL

Donald B. Ayer is not your ordinary lawyer. He has argued many times before the Supreme Court and has served as a president of the American Academy of Appellate Lawyers. This intimate association with the history and workings of our nation's highest court provides Ayer with some interesting insights.

Of importance are some clues as to how court justices make their determinations. People want to know if these judges can (as some claim) be objective in making legal judgments. Is it believable that a judge can dispassionately and mechanically lay down a law alongside a clause in the Constitution and declare harmony or incompatibility? Can a court with a majority of one religious denomination be objective about cases involving abortion rights and separation of church and state?

John Roberts, the present chief justice, assures us that he can do this with regularity and that it is simply like an umpire calling balls and strikes. At first glance, this seems easy enough. An umpire is in a position to watch the ball and the plate and make the call according to what he sees. However, this comparison is clearly flawed. Calling balls and strikes is a purely visual act with little or no time for reflection. As a consequence, many mistakes are made.

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This is not an academic debate. We have just been witness to a sideshow in which senators, hoping to make points with constituents and important interest groups, try to choke the nominee to regurgitate the myth that she will be objective in all court decisions. To survive, she artfully replied to all questions with no slip of the tongue.

This was an especially delicate situation for Elena Kagan during her confirmation hearings because she had written articles raising serious doubts about the sincerity of senators who were adamant in their demand for objectivity from prospective justices.

There are common sense and technical reasons why a justice will find it difficult to be a robotlike computer grinding out a priori judgments. They are, to some extent, bound by precedent. Many have made public statements or have written articles that can be used to support or contradict any new pronouncements.

Several conservative justices have made public statements that they have made an unalterable commitment to a doctrine known as "original intention." This is an obvious subjective choice (or ideology) telling the world what standard they will use in judging cases.

Unavoidable subjectivity exists because there are glaring generalities within the Constitution. These generalities were a practical necessity to obtain ratification. Too much specificity would have presented an obstacle to ratification. How could the Founders, at that stage of our national development, spell out agreeably such important specifics as those important ideals in the Prologue of their newly crafted document?

What does it mean specifically to "establish justice," "insure domestic tranquility," "provide for the general welfare" and secure the blessings of liberty"? Since the inception of our national government, federal and state legislators and judges have debated what the foregoing terms mean. It has long been accepted that the Supreme Court has the final say and they have, on occasion, reversed themselves.

Not to be neglected is the power of judges to change the mind of other judges. Informally, subjective opinions are shared regularly. There are more formal conferences at which judges announce how they plan to vote on each case. The door is still open to reconsider until the vote is actually recorded.

John Marshall, the great chief justice, had a decisive influence on the thinking of the other court members because they had lunch together and then pitched quoits. Marshall used this setting to his advantage and was able to sway justices to his view of cases.

The foregoing points make it obvious that each justice will have subjective reasons for making each of their decisions. Nonetheless, senators will act out a charade extracting a weak promise of objectivity from each nominee. Thus, they will merely continue the practice of affirming their own objectivity while remaining suspicious of the other senators' claims. No wonder the myth of objectivity never dies.

Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.

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