Our President began yesterday describing his plans for our Supreme Court:
. . . I would like to say a few words about [Justice David Souter’s] decision to retire from the Supreme Court.
Throughout his two decades on the Supreme Court Justice Souter has shown what it means to be a fair minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task: reaching a just result in the case that was before him.
He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity, and compassion–the hallmark of not just being a good judge, but of being a good person. I am incredibly grateful for his dedicated service. I told him as much when we spoke. . . .
The process of selecting someone to replace Justice Souter is among my most serious responsibilities as president. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook, it is also about how our laws affect the daily realities of people’s lives–whether they can make a living and care for their families, whether they feel safe in their homes and welcome and their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our Constitutional traditions, who respects the integrity of the judicial process, and the appropriate limits of the judicial role. I will seek somebody who shares my respect for Constitutional values on which this Nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
As I make this decision I intend to consult with members of both parties across the political spectrum and it is my hope that we can swear in our new Supreme Court Justice in time for him or her to be seated by the first Monday in October when the Court’s new term begins. . . .
President Barack Obama (empahsis added)
The highlighted passages above suggest that our President is very much aware of the tension between “law” and “justice” and seeks to nominate Supreme Court Justices who are prepared to rule on the side of justice, which, one might conclude, is exactly what we expect judges and Supreme Court Justices to do. And so it is, until we reach the “hard” cases, where the law seemingly cannot be reconciled with justice. Where the law, as written, appears in this case, or on these facts, or at this time, or in this day and age, to require an unjust result. Then, it is said, it is up to the judge or justice to either follow the law and reach an unjust result, or follow their heart and “Do Justice!”
This apparent tension between following the law or “doing justice” is not new or newly discovered. It is as old as the law and has been described many times through the retelling of the following story about an exchange between Supreme Court Justice Oliver Wendell Holmes Jr. (1841-1935) and Judge Learned Hand (1872-1961), as originally told by Learned Hand:
I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: “Well, sir, goodbye. Do justice!” He turned quite sharply and he said: “Come here. Come here.” I answered: “Oh, I know, I know.” He replied: “That is not my job. My job is to play the game according to the rules.”
Judge Learned Hand (“Do Justice!”: Variations of a Thrice-Told Tale)
Playing the game according to the rules, following the written law, interpreting the written constitution, was and is the proper role of a judge or justice in the view of Justice Holmes and, as noted before on this site, of Justice Clarence Thomas and, of course, Justice Antonin Scalia and others. Today, on the one hand we have “originalism,” described by Justice Thomas as the conscientious effort to determine the original intent of the framers of a constitution or other written law and, on the other hand, we have the activity famously referred to as “legislating from the bench.”
“Doing justice” in the manner suggested by Judge Hand (to provoke a response from Justice Holmes), and by our President upon the resignation of Justice Souter, would be a movement away from originalism (and doing justice under the law), and toward doing justice in spite of the law. I’m not sure that’s a change we can believe in.
(Also posted at http://psmkr.com/ )