HOW STATE COURTS CAN HELP AMERICA RECOVER THE RULE OF LAW: THE PENNSYLVANIA EXPERIENCE.

• Author: Ledewitz, Bruce

1. INTRODUCTION

   Just before Thanksgiving, a jurisprudentially revealing and widely publicized debate about whether America has a rule of law took place between the President of the United States and the Chief Justice of the Supreme Court. (1) President Donald Trump criticized a judicial decision that went against his Administration as having been rendered by an "Obama judge." (2) Chief Justice John Roberts responded that "we do not have Obama judges or Trump judges." (3) The Chief Justice was defending judicial independence as a necessary aspect of the rule of law. (4)

   But, instead of coming to his defense, most observers, on both sides of the political aisle, seemed to agree with President Trump. (5) Senate Minority Leader Chuck Schumer referred to the Chief Justice as a "Republican[]," thus illustrating President Trump's point about partisan judging. (6) Randy Barnett, probably the leading conservative legal theorist in America, tweeted, "If you don't think presidents of each party (try to) select judges with differing judicial philosophies, you haven't been paying attention. Roosevelt surely did. And he wasn't the first nor the last. The argumentation on this one is truly bizarre." (7)

   Somehow, without most of us noticing, the idea of a rule of law has become intellectually implausible and politically indefensible. Most of us now seem to believe that the ideology of the judge is all important. (8) The implications of this change are dire.

   There is a great deal of philosophically oriented literature about objectivity and the rule of law in this post-modern age, including Steve Smith's classic work, Law's Quandry. (9) It is not my intention here to repeat in any detail arguments that nihilism, by which I mean in this context, skepticism about the objectivity of values, has undermined the rule of law. Suffice it to say that for a classically oriented jurist like Justice John Harlan, legal decisions were understood to reflect a "rational continuum." (10) If rationality, instead, is just a front for power and political commitment, law as it was understood in our tradition is not possible.

   Rather, my purpose is to begin to answer a question about how to go forward--"can a commitment to Truth be reintroduced in American law schools, and how, and when?" (11) The answer I propose is that truth can be reintroduced in law by attending to the healthy values discourse that still goes on in at least some state constitutional decision-making. I will illustrate that proposal by contrasting U.S. Supreme Court value skepticism with reasoned values engagement by the Pennsylvania Supreme Court. Of course, I will only highlight a very few instances of what I call the absence of the fear of subjectivity in the Pennsylvania tradition, but they are contexts in which similar judgments on the U.S. Supreme Court probably would bring forth such concerns.

   I have not done the research to establish that Pennsylvania is representative of the nation in regard to values engagement, but my impression is that this is the case. State constitutional law seems simply healthier today than is the federal tradition.

   In order for state courts to serve as an antidote to nihilism, it is also necessary to address the question of why state constitutional discourse is better able to engage in reasoned discourse about values. (12) Ironically, the suggestion raised in the final section of this Article is that it is the more political nature of state courts that permits state judges to be open about their values. That is to say, the problem of nihilism is not that there are Obama judges and Trump judges and is not that judges have different judicial philosophies. The problem of nihilism is the fatalism that describes this situation as fixed. (13) Since under skepticism there is no truth to discover, there is no possibility of persuasion and change. (14) We simply remain forever locked in our contrary positions.

   What is needed, instead, is for judges to have an open conversation about values among themselves and with the people, so that democratic judgments can be rendered and law can advance. (15) That is how a rule of law works in a democratic society. (16) That process is being choked by a nihilism that paralyses national debate. (17) But that engagement still goes on at the state level. (18)

2. THE NIHILISM OF FEDERAL CONSTITUTIONAL LAW

   One illustration will suffice to demonstrate the value skepticism of U.S. Supreme Court decisions--though the reader is free to consult a series of articles in which I have endeavored to make this case more generally. (19) In McDonald v. City of Chicago, (20) in a five to four decision, the U.S. Supreme Court held that the Second Amendment's protection of the right to bear arms is fully applicable to the states. (21) In the course of that decision, the five Justice majority held that the right to bear arms is "fundamental." (22)

   In dissent, Justice Stevens disputed this conclusion:

   I do not doubt for a moment that many Americans feel deeply passionate about firearms, and see them as critical to their way of life as well as to their security. Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality.... (23) Justice Scalia responded to this assertion with what can only be called, in a reference to the famous and despairing statement by Arthur Leff, as "the Grand Sez Who:" (24) "Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment--the antithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.'" (25) Just to make it clear that he is not objecting to the particular grounds that Justice Stevens raises to support his claim, Justice Scalia goes on to contrast "vague ethico-political First Principles" with "historical methodology," which, because it does not reason from first principles, but relies on verifiable evidence, "is much less subjective." (26)

   I believe it is a fair summary of Justice Scalia's position to say that there can be no reasoning about politics or morality because judgments in these fields are inherently subjective. Despite his application of this conclusion against Justice Stevens in McDonald, Justice Stevens himself had earlier joined an opinion in which values were described as mere human constructs. (27) So, I am not here highlighting or criticizing this position as in any way unique to Justice Scalia. As was usually the case in his lifetime, Justice Scalia is simply sharper and clearer in his enunciation of his position than is any other Justice. (28) All the Justices are subject to value skepticism.

   It is easy to show that value skepticism like this is illogical and self-refuting. After all, the claim that judicial subjectivity is a threat to democracy, which Justice Scalia makes repeatedly, is itself nothing more than a "political, moral judgment" founded on First Principles as is the further claim that judges should be faithful to the Constitution. (29) Who says?

   Justice Scalia held to these positions because he believed them to be in some sense true. (30) He undoubtedly had reasons for believing these things that he thought were rational and based on First Principles. (31) Presumably, he did not consider those commitments to be merely subjective.

   Unfortunately, the rule of law itself is another one of those "political, moral judgments" that are merely subjective under the reign of skepticism. The rule of law cannot be protected by resort to history or tradition because in Justice Scalia's skeptical formulation, those limits are merely prudential posits--mere mechanisms to restrain judicial subjectivity. (32) There can be no reason given to want to limit judicial subjectivity. Since reason is said to play no role, cannot, in fact, play a role in political or moral judgment, (33) these limits themselves cannot be defended rationally.

   Believing this, as unfortunately we do, of course we just have Obama judges and Trump judges. We just have judges who come to different decisions--what Barnett calls having different judicial philosophies. (34) However, the word philosophy is misplaced in this skeptical context. One cannot give good reasons for having one philosophy or another because reason has nothing to do with it. We just believe what we believe. Further, politicians should expect continuing loyalty to these judicial positions by the judges they confirm to the federal courts. There should never be any change or growth or new understanding. That is why there is such a current mania to confirm as many conservative judges as possible to create lasting conservative control of the federal courts. (35) That is why Democrats are so anxious to "take back" the Supreme Court. (36) Under value skepticism, changing one's mind is always betrayal because there could, by definition, be no good reason to do so. (37)

3. VALUES IN PENNSYLVANIA CONSTITUTIONAL LAW

   Value skepticism of the type illustrated by Justice Scalia above is not wholly absent in Pennsylvania constitutional law, as I will elaborate below. After all, nihilism is a culture-wide phenomenon. (38) The point of the contrast between federal and state constitutional law is simply that at the federal level, skepticism is all-consuming. (39) It is a potential rejoinder to any invocation of values. That is not merely a possibility. The criticism of a judgment as merely subjective is often actually raised at the federal level. (40) That is not so in the Pennsylvania state courts. (41)

   A case that illustrates very well the confidence of the Pennsylvania Supreme Court in making what might be called common sense, value laden judgments is the unanimous opinion in Commonwealth v. Eisenberg, in which the court struck down a mandatory $75,000 fine as excessive under the State Excessive Fines provision. (42)

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