SADOMASOCHISTIC JUDGING.

• Author: Schraub, David
• Position: Book review

LAW AND LEGITIMACY IN THE SUPREME COURT. Richard H. Fallon, Jr. (*) Cambridge, Mass.: Harvard University Press. 2018. Pp. xii + 221. $41.00 (Cloth).

What makes a judicial decision legitimate? Common answers include fidelity to legal texts and precedent, coherence to natural or intersubjectively agreed upon norms, or endorsement from democratically accountable actors. But while these criteria each have strong theoretical appeal, their practical usefulness as a means of validating any contested judicial decision is often limited. In cases of legal indeterminacy or the proverbial "hard cases," many different outcomes can at least claim to fulfill these requirements. A decision which genuinely fulfills legitimacy criteria and one which is merely going through the motions often will be observationally equivalent.

As a means of practically establishing legal legitimacy in a way verifiable to external observers, pain is an underappreciated but important element of judicial practice. Judges routinely brag of rendering decisions which are painful to them--upholding "uncommonly silly laws," protecting "speech that we hate," reluctantly permitting terrible injustices to persist because the law "ties our hands." Far from being relegated to the embarrassed fringes, such cases play a central role in establishing judges as legitimate actors bound by law, and in many ways represent the demarcation line between good and bad judges--a good judge is one who does not flinch even in the face of great pain. Yet it should be clear that there is great risk in tying the validation of judges to the infliction and receipt of pain. To the extent judges are socialized into associating pain with legitimacy, the legal system that emerges will likely be one which needlessly and gratuitously inflicts pain.

INTRODUCTION

In 2013, Judge Richard Kopf of the District of Nebraska levied a powerful warning for aspiring federal judges. He asked them to ask themselves: "Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?" The question, Judge Kopf continued, gets at a painful truth: "When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis." "Those who covet a federal trial judgeship," he advised, "should think hard about this truth before pursuing the job." (2)

It's good advice. This reality of judging--the necessity of inflicting pain as a daily feature of the job--is one all judicial candidates should reflect upon. On the other hand, we probably don't want judges who, after pondering whether they can serve as a "willing judicial executioner," answer with a hearty and cheerful affirmative. Perhaps the moral of the story is that the best judges are perpetually miserable.

Richard Fallon's book Law and Legitimacy in the Supreme Court does not spend much time considering the emotional well-being of judges--their happiness or sadness. Its focus is, as the name implies, on questions of legitimacy in judicial decisionmaking. "By what moral right" does the United States Supreme Court "establish controversial rules of law... and then enforce its dictates coercively? Or, perhaps better, How [sic] would the Supreme Court of the United States need to decide the cases before it--both procedurally and substantively--in order to justify imposing its will on those who reasonably disagree with its conclusions... ?" (p. 7).

Yet the paradox of the miserable judge has more relevance to the question of legal legitimacy than might be apparent at first glance. It is not just that judges inflict pain as part of their daily job. It is more fundamental than that: judges inflict pain and thereby validate and legitimize their job. A judge who is charged to be simply a tyrant in a robe, maximizing her own policy preferences while dressing it all up in legalese, will instinctively rejoin by citing all the cases where she would have preferred to rule in a different way, was agonized by what the law compelled her to do, but nonetheless acted in accordance with it. In a very real sense, it is these "painful" decisions--the ones judges hate, the ones where they palpably and vocally wince and squirm, the ones which cause or sanction obvious harm and injury that goes beyond what seems fair or justifiable as a matter of pure ethics--that are the most important to establishing judges as constrained by law and therefore legitimate. In this way, the question of legitimation becomes inextricably bound up with questions of pain--the judge who inflicts pain and who reflexively feels pain in return.

Part I offers an introduction by assessing Fallon's approach to the judicial legitimation project as a means of distinguishing truly "legal" decisions from mere judicial caprice. While theoretically rigorous, it suffers because many of the features which putatively distinguish licit versus lawless judging are difficult if not impossible to observe and so cannot actually serve to legitimate any particular judicial decision in a universe where essentially all contested judicial decisions are at least plausibly legalistic.

Part II suggests that pain appears to offer a viable means of observationally confirming that a judicial decision genuinely stems from legalistic commitments--the decision that the judge is pained to hand down, generally because it causes unjust pain to others, is presumptively legitimate insofar as the judge has no other reason to make such a ruling but because he or she is legally compelled to do so. Of course, conceptually the only true connection between pain and legitimate judicial decision-making is one of compatibility: a decision can be painful and still legitimate. Yet--precisely because it appears to offer the elusive guarantee of judicial legitimacy--pain can easily become viewed as a heuristic for or even constitutive of legitimate judging. Judges come to sadomasochistically crave pain and the legitimacy it provides, seeking out pain and reveling in the painful outcomes even when they are not demanded by the law.

Part III concludes by exploring the degree to which the judiciary today can be described as engaging in sadomasochistic judging. After the 2016 election, there were some predictions that the Supreme Court would serve as a check against extreme abuses by the Trump administration--expectations premised on the (likely true) assumption that even most conservative judges were not "Trumpist" in their personal beliefs. Instead, over the course of the Trump administration the Supreme Court in particular has not just handed repeated victories to the administration, it has taken extraordinary steps--often in the cases (particularly surrounding immigration) in which the Trump administration's cruelties are at their apex--to intervene on the administration's behalf in manners that circumvent the ordinary appellate review process. That the Court is wielding not just its purely legal analytic power but also its discretionary power (e.g., over when to grant certiorari, stays, injunctions, and so on) in these cases--and seems if anything more inclined to do so in cases where the judges might be thought to be most squeamish about the tangible outcomes of the decision--cries out for explanation. While it is possible that it simply reflects a basic policy affinity between the justices and the administration on these issues, it may actually stem from the opposite instinct: the sense that a good judge, a legitimate judge, is one who does not shy away from his or her duty in the face of pain; a suspicion that (lower court) judges who arrest pain are shirking this duty; and the conclusion that the rule of law demands if anything greater attention and scrutiny to those cases and rulings where courts are avoiding pain--and thereby, potentially, avoiding their judicial duty.

1. LEGAL LEGITIMACY VERSUS JUDICIAL CAPRICE

   Fallon introduces his book by recalling a remark from Justice Brennan that "the most important number in the Supreme Court is five." Why? Because "[w]ith five votes, you can do anything" (p. x). (3) Justice Brennan was no doubt speaking somewhat tongue in cheek. Nonetheless, he was evoking one of the recurrent fears surrounding the exercise of judicial power--that it is naught but the caprice of a judicial majority, that given a panel majority judges are free to simply do anything they like. (4) Judicial legitimacy is meant as a conceptual check against this vision of terrifying judicial freedom-as-tyranny. (5)

   One potential mechanism for constraining judges--ensuring that they decide based on law, and not their own subjective whim--is attempting to formulate a constitutional theory that minimizes if not eliminates indeterminacy. If there is only one correct outcome to any potential case or controversy, and that outcome is fairly discernable by a suitably well-trained legal observer, then a judge who deviates from the one true path can be immediately recognized as a rogue or usurper. Originalism often holds itself out as providing such legal determinacy, (6) though Fallon is deeply skeptical that it succeeds in its aspiration (pp. 137-142).

   But Fallon makes the more expansive argument that "the very ambition of developing a perfectly determinate constitutional theory should strike us as misguided--indeed, as terrifyingly so" (p. 141). A perfectly determinate judicial theory always runs the risk of compelling "practically and morally disastrous outcomes," and few are willing to actually endorse these consequences simply because theory demands it (p. 141). This is the force of Michael McConnell's famous concession that "if any particular [constitutional] theory does not produce the conclusion that Brown [v. Board of Education] was correctly decided, the theory is seriously discredited" (p. 145). (7) Just as Anatole France suggested that "to die for an idea is to place a pretty high...