On Judging and "Classical Judicial Jurists"

A few nights ago, watching the Stanley Cup finals reminded me of the confirmation hearings for my colleague Dawn Johnsen to head the Office of Legal Counsel. During her exchange with Senator Sessions, the Senator expressed the following view:

I think Justice Alito and Roberts have firm, classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench -- (inaudible) -- said about to radically remake the Constitution, it's the activists that are remaking the Constitution, not the classical judicial jurists.

It would be too easy to criticize this statement as sheer lunacy (note to self: send Senator Sessions a copy of The Attitudinalist Model Revisited and The Choices Justices Make). But that would be to give this view far too much credit. The better story here is how such a view is accepted in places that matter, like the U.S. Senate. And that, standing alone, is a triumph of the conservative movement.

Consider also Chief Justice Roberts' confirmation hearing, where he assured the Judiciary committee that

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

Unsurprisingly, this vision of his role died soon after his confirmation to the Court. He is not the limited judge he professed to be. It appears he never was.

Move this story ahead, to the upcoming racial "discrimination" case, Ricci v. DeStefano, or the Namudno case, which will consider the constitutionality of the special provisions of the Voting Rights Act. The same Chief Justice who professes to only apply the rules as they exist, and who abhors judicial activism, will decide these cases not on the law as it is written, but on the law as he wishes it to be.

This brings me to the Stanley Cup finals. After game 2, a star player received an "instigator" penalty for fighting during the last minute of the game. And the Rule seems pretty clear on this:

47.12 Instigator in Final Five Minutes of Regulation Time (or Anytime in Overtime) - A player or goalkeeper who is deemed to be the instigator of an altercation in the final five (5) minutes of regulation time or at any time in overtime shall be assessed an instigator minor penalty, a major penalty for fighting, and a game misconduct penalty (see 47.22).

The problem was, this was a star player, and to suspend him would place his team at a serious disadvantage. But rules are rules, right? Here's what his coach said after the game: "If he got an instigator in the last five minutes, I think there are rules that are clear. I don't know." However, here's what the league office said, in a statement issued an hour after game 2 ended:

None of the criteria in this rule applied in this situation. Suspensions are applied under this rule when a team attempts to send a message in the last five minutes by having a player instigate a fight. A suspension could also be applied when a player seeks retribution for a prior incident. Neither was the case here and therefore the one game suspension is rescinded.

Of course. Tell it to Chief Justice Roberts, or Senator Sessions.

So when you read Ricci and Namudno, think about stare decisis; and about the text of the Equal Protection Clause and Section 2 of the Fifteenth Amendment; and about the intentions of the Reconstruction Congress who drafted these Amendments into the Constitution. All of these "classical" sources of law will point you in the same direction. And yet none of these sources will matter to the "classical" jurists on the Court. They will vote to overturn the Second Circuit in Ricci, and they will likely vote to strike down the special provisions of the VRA in Namudno. And Senator Sessions will not call them "activists," because, well, they reached the right result (that is, a result with which he agrees).

I wonder if Chief Justice Roberts is a hockey fan. The NHL did him proud the other day. He could not have done it any better.