Scholars and judges: reason and power.

• Author: Fried, Charles

The just qadi (judge) will be brought on the Judgment Day, and confronted with such a harsh accounting that he will wish that he had never judged between any two, even as to a single date.(1)

Judges are three: two in Fire, and one in Paradise. A man who has knowledge, and judges by what he knows -- he is in Paradise. A man who is ignorant, and judges according to his ignorance -- he is in the Fire. A man who has knowledge, and judges by something other than his knowledge -- he is in the Fire.(2)

Last Fall I heard a news broadcast that the Massachusetts Supreme Judicial Court would that day hear argument in a suit by a man against his ex-wife to prevent her from having implanted in her frozen embryos created by them both while they were still married.(3) I remember my first, unreflecting reaction. It was as if scientists were nearing the carbon dating of a strange fossil, and so would settle once and for all the puzzle of dinosaur extinction. Then I realized how strange was my reflex. Just months before, I had been a member of that court, and if the case had come up earlier I might have been struggling to decide it with no more wisdom or knowledge than I had when I heard that broadcast.

My instinctive reaction finds reflection in the pervasive near reverence with which the public and the profession treats judges and their opinions. Judicial opinions are not quite the exclusive diet of scholars and law teachers that they used to be, but we still teach much of the law out of case books excerpting judicial opinions. Legal scholarship is still largely about judicial opinions. Theories about what the law is -- the legal realists notwithstanding -- are still mainly about what judicial opinions have said about the law. Nowhere is this truer than in constitutional law. Constitutional theories are constructed based on the most exquisite parsing of judicial opinions, a task made more intricate by the proliferation of cases in which there is no opinion of the court so that scholars offer Venn diagram-like analyses to arrive at the maximum common content of separate opinions.

Constitutional law is a text-based subject only in the sense that antitrust law is text-based. Antitrust law depends basically on three rather terse statutory provisions -- sections 1 and 2 of the Sherman Act(4) and section 12 of the Clayton Act;(5) yet, Professor Areeda's authoritative treatise has attained eleven volumes and is not yet complete.(6) Similarly, the text of the Constitution consists of some 68 sections and fills about fifteen pages in a standard constitutional law case book, yet there are now well over 500 volumes of Supreme Court cases, a large part of which deal with constitutional issues and announce constitutional law. Professor Tribe's constitutional law treatise, now in its third edition, runs over 1300 pages of small type in the first volume alone.(7) Clearly, constitutional law is judge-made law. It is not only judge-made law, but its main lines are set out by one court, the Supreme Court. Thus, it is on that Court that I focus in this Essay. In this respect, constitutional law resembles the English common law of contract or tort.(8) There are, however, these differences: Rules of constitutional law are generally about far more fundamental matters than any particular rule of tort or contract law, and legislatures cannot override these constitutional rules without amending the Constitution.

So it is no surprise that the Supreme Court is held in such awe -- power has that effect -- but it is also true that the Court from the beginning has conducted itself with a degree of circumspection, dignity, and conscientiousness that has enhanced this natural tendency to venerate power, while giving little ground for the equal and opposite tendency first to gossip about and then to deprecate any institution or person who is the subject of official veneration. Perhaps no institution of our government does its work at once so discretely and so openly. Its authoritative acts are based exclusively on publicly available materials: the briefs and arguments of the parties, the records appended to those briefs, and, to an indeterminate extent, matters of common knowledge that form the common background of those materials. Private communications on pending matters from outside the Court are strictly forbidden -- both by tradition and the canons of judicial ethics(9) -- and rarely has it been suggested that such communications take place.(10) Whatever else people before the Court may think, they do not worry about that. Additionally, the exercise of the Court's power is remarkably, uniquely open: Its decisions are accompanied by the reasons for those decisions. Indeed, without those reasons the decision in any particular case would be of quite limited significance. To a remarkable degree, to a degree unknown in any other branch of government, the Court's exercise of power is its reasons. Yet the internal deliberations by which the Court arrives at a decision once it has publicly been presented with the materials for that decision are shielded almost entirely from view. Alone among governmental institutions, the Court does not leak.(11)

So--what with the power, the prestige, the aura of the thing--it is not surprising that Justices are treated as oracles, prophets, sages.(12) More to my point, their opinions are treated as oracular, prophetic deliverances. Consider again the way law school classes, casebooks, scholarly books and articles, and learned discussions parse those opinions.(13)

What do scholars and students look for in Supreme Court opinions? Pretty generally, they look for a theory of the subject. The model that comes to mind is Ronald Dworkin's hypothetical Judge Hercules.(14) Faced with a new (constitutional) case, Hercules surveys the whole of the relevant legal universe to determine how it fits with past decisions, the applicable texts, the principles explicit and implicit in those decisions, and a general political and moral theory of constitutional law in which those decisions and principles are embedded. I agree with Dworkin's description of this ideal type of judicial activity.(15) This may mean that legal scholarship and judging--each at their best--converge, but they do not become the same thing.

Scholarship and judging diverge most obviously when the scholar criticizes the Herculean construct at which the judge has arrived, either in part or root and branch. The judge is also free to criticize the law as she finds it--and there are some notable examples of judges doing just that while accepting and carrying on in a course of decision they regret or even deplore.(16) Judges act in this manner because, though the Herculean labor may seem quite unconfined, the law confines judges. What does it mean to be confined by the law? It means that however much freedom the interpretative task may seem to leave judges, still they do interpret the law. They interpret the legal materials out of which they construct a legal theory that carries them forward to the new decision they must make, and there is a limit beyond which it is simply no longer plausible to claim that a decision is interpreting those materials rather than twisting or ignoring them.(17) I will not offer here a complete account of when that limit is reached; it is in any event ultimately a matter of judgment and good faith.(18)

A scholar, by contrast, is entirely free to offer whatever construct he chooses, constrained only by the requirements of candor and whatever ambition he may entertain that his analysis be relevant. As to candor, little need be said: This is the scholar's equivalent of the good faith enjoined upon judges. The issue of relevance is another matter. A scholar pays a price if he offers a whole new way of approaching a subject, prescinding from the legal materials whenever they do not accord with (whenever they constrain) his construction: The further he moves away from the constraining materials the less useful will his alternative account be to judges who live under those constraints. The scholar may be willing to pay that price. His ambition may extend no further than to lay out what a better treatment of the subject would look like, or he may hope that some of the constraints imposed by the materials might be loosened. In that case, his enterprise may differ from that of the judge absolutely or only as a matter of degree. The difference is absolute when the scholar proposes amending the legislative texts -- in the case of constitutional law, amending the Constitution. Of course, a judge also may propose amending the constraining texts, but only either as an aside, or as an argumentative trope to show why she is not free to act against them and so to emphasize their constraining power. The scholar may strain against a line of precedent, proposing overruling large or small parts of it. To be sure, as a matter of power, judges are free to overrule precedent whenever they wish, but a proper view of their role limits the occasions when they do, or should, feel free to do that.(19) In a sense, respect for precedent, stare decisis, counts as an item in the materials which constrain the judge. To the extent that the scholar's proposal accepts that particular constraint but merely interprets it differently, then his plea for an overruling remains congruous with the judge's work. The scholar, however, need not accept that constraint any more than he need accept the constraint of a particular authoritative text. The only constraint a scholar need accept is candor.(20)

This shows that over a very large range -- perhaps the whole of the domain of traditional legal scholarship -- a scholar works as a kind of shadow judge, doing just what the judge would do and implicitly proposing that he in fact does it better. He may do it better by reaching conclusions that accord more closely with the legal materials, or he may do it better in the more modest sense...