Law & Society Blog

Solum equates dysfunctionality with a lack of predictability. Predictability of judicial decisions has a long and venerable history as one of the core values of a functioning judiciary. Arbitrariness, the rule of man, is what the application of general rules, the rule of law, was designed to overcome. (Or so the legal system explains that particular function to itself from an internal point of view. Of course, one could argue that, in some sense, the Court is not dysfunctional at all. A significant function of any court is to render decisions and to give finality to disputes, irrespective of the substantive outcome.) There are at least two mechanisms by which to increase the predictability of judicial decisions, one is factual, realist, and external in nature, the other normative, formalist, and internal. The “results-oriented, closely divided court” achieves (some degree of) predictability through a stable majority of justices being on the same team, ideologically speaking. That is the realist’s scenario of external predictability. The “divided formalist court” achieves (some degree of) predictability by strict adherence to internal, normative limitations imposed on the decision making process by text or precedent. That is the formalist’s scenario of internal control. Some would argue (and legal history would be on their side) that only the latter retains a connection to justice, as the former achieves predictability on an entirely extra-legal basis. Put differently, a realist’s court only manipulates the symbols of the legal code on a syntactical level, whereas the formalist’s court feels bound by the meaning of the code, that is, by the code’s semantics. Against that backdrop, Solum’s conclusion is, in fact, compelling. If the inframarginal voices on the Court are cancelled out, then the decision is made at the margin. That margin, O’Connor and Kennedy, places greater value to “making the right choice” (an amorphous realism) than to formalism. As a consequence, there are no meaningful internal restraints and there is no clearly identifiable external restraint (for example, in the form of a shared ideology). The result is arbitrariness.
Solum’s proposed solution is one of achieving formalistic ends, internal predictability, through realistic means, that is, by selecting judges that subscribe to a more legalistic and less (openly) political judicial philosophy:

When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice–the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges’ own perceptions of what the law should be. We should select Justices who are willing to compromise in order to produce stable majorities on particular issues. We should select Justices who will respect the Supreme Court’s decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law. Swing Votes, Making Things Come Out Right, and the Virtue of Justice.

From my point of view, the real question is how we can approximate Solum’s (desirable) “good judicial character” outcome even if everyone involved in the process was hopelessly partisan, did not attribute any independent value to the rule of law, and was openly or secretly pushing a political agenda. The current system of appointing justices is not designed to mitigate such partisanship. However, what if:

(1) The tenure of each justice would be limited to a single term (for example, 10 years); and
(2) Justices would be appointed in batches of two, where each political party, through their representatives, gets to nominate one justice and the other party has a veto right as to the batch of two. Once a veto is exercised, both nominees are rendered ineligible for the present vacancies.

This simple procedural setup would make the appointment of politically committed (that is, inframarginal) justices less likely. Of course, there is no guarantee that politically more centrist nominees would turn to judicial formalism as a guiding principle subsequent to their appointment to the Court. However, once the political benefits from pushing partisan nominees are greatly diminished, Solum’s considerations of genuine judicial virtues would at least stand a greater chance of playing a more prominent role the selection process. Put simply, if you can’t have your own justice, chances are that you prefer a competent justice over a less competent one, whereby competence would (hopefully) be measured by the default internal standards of the legal system.

License

This work is published under a Creative Commons Attribution-Noncommercial 2.5 License.