There’s a persistent claim in the media and by pundits that the law is a set of statements from which we can impartially, if we are well-schooled and self-controlled, draw conclusions that do not in any way involve our personal beliefs and values. Sotomayor, of course, being a woman, may not be the right sort of logic machine.
In fact, applying the law involves both logic and something like imagination. Interestingly, the record of the present Chief Justice reveals the role of the two in judicial decision making.
From Jeffrey Toobin in the New Yorker:
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
What were some of the decisions of his court that involve decisions not logically following from the law? Well, there was the Seattle case; Roberts ruled against precedent that any consideration of race counts against equal protection. That is, the Seattle school board’s attempt at integration was as illegal as attempts at segregation.
In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Of course, history’s against him on that one, but in any case his ‘principle’ – that stopping integration will stop segregation – is a political and psychological conjecture, at best. And in the same term:
the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations. Also that year they upheld the federal Partial Birth Abortion Ban Act, in Kennedy’s opinion, even though the Court had rejected a nearly identical law just seven years earlier. [In] the case of Ledbetter v. Goodyear, brought by a sympathetic grandmother who had been paid far less than men doing the same work at the tire company … the conservative majority, in an opinion by Alito, imposed seemingly insurmountable new burdens on plaintiffs in employment-discrimination lawsuits.
Roberts has been a consistent supporter of death sentences, and he wrote the Court’s opinion holding that lethal injection does not amount to the sort of cruel and unusual punishment prohibited by the Eighth Amendment.
Does this all just show that the court is packed with people who can’t follow logic? Not exactly; what it tells us instead is that we cannot have a set of principles for right action from which we can logically deduce all the answers we need. Human concepts do not work that way.
Philosophers, who as a field have failed after centuries and centuries of trying to come up with necessary and sufficient conditions for just about anything, should know this. The best discussion of it that I know of can be found in Mark Johnson’s book, Moral Imagination. Because of our concepts and the ways we think, justices need to apply the law in ways that go beyond simple deductions. What forms their moral imaginations is extremely important. As Obama has seen. And in fact as Bush may have realized also.