Guess the Author
of the following passage:
The judge's proper task is not mechanical. "History," Cardinal Newman reminded us, "is not a creed or a catechism, it gives lessons rather than rules." No body of doctrine is born fully developed. That is as true of constitutional law as it is of theology. The provisions of the Constitution state profound but simple and general ideas. The law laid down in those provisions gradually gains body, substance, doctrines, and distinctions as judges, equipped at first with only those ideas, are forced to confront new situations and changing circumstances.
Pick from the following list:
a) William Brennan
b) Sonia Sotomayor
c) Samuel Alito
d) Robert Bork
e) Laurence Tribe
Rod Blaine (mail):
And this, class, is why I got such a surprise on hearing that Robert Bork had converted to Catholicism in 2005 or '06. I'd read "The T of A" in 1990 and was convinced - from his copious citing of Belloc and Chesterton - that he was Catholic already. It seemed to sit rather uneasily with his insistence on the exhaustiveness of the Constitutional text to the exclusion of unwritten "traditions".

Bork's subsequent writings seemed to be in the spirit less of Alexander Bickel than of Travis Bickel.
5.27.2009 1:45am
Asher (mail):
It's always nice when originalists throw in these little "well of course I don't believe in mechanical interpretation of the law" provisos, but often their statements elsewhere tend to belie that. For instance - and not that I'm accusing you of being an originalist (or praising you to that effect) - in the comment thread on your empathy post, you repeatedly insisted that of course you didn't believe that the constitutional text necessarily always yields one easy answer that can be mechanically derived, but at other points you claimed that being a federal judge is a rather boring job if you "just apply the law," and that perhaps that's why good originialist judges like McConnell retire early, because they're so bored by the humdrum, easy work of "just applying the law." Which makes it sound that, for the most part at least, constitutional interpretation is a fairly mechanical affair.
5.27.2009 3:05am

I thought the Bork comment was interesting because it suggests something I have found to be accurate and is sometimes overlooked -- that no one believes in a mechanical application of the law. I don't see how that is inconsistent with the view that being a federal court of appeals judge isn't the world's most exciting job, or that the great majority of federal court of appeals cases are pretty straightforward.
5.27.2009 3:31am

I can see how you got that impression. But I'd say, speaking as an RC, that his conversion at this late date is surprising. His second wife was a sister for quite some time. And she's not one of those frequently-encountered angry ex-religious who want to turn the Catholic Church into the Episcopal Church. So it can die out slowly, I guess.

If people convert to RC after marrying a Catholic, it usually happens more quickly. Otherwise not at all. But, hey, we'll take him. Anyone else, as well.

Can I send you some pamphlets?
5.27.2009 6:26am
Leo Marvin (mail):

I've got the pamphlets, but could use some more incense, please.

Sorry you weren't well. Glad you're feeling better. Welcome back.
5.27.2009 7:54am
Prof. Kerr,

1. Does your evaluation of the excitement of being a federal appeals judge apply with equal force to the job of Supreme Court justice? If so, how does this square with the repeated insistence of some members of the Court that they are not in the business of error correction (thus justifying their ridiculously low case load)? If not, what is it about sitting on the bench at 1 First Street that changes the job description so dramatically?

2. A related question: I'm not sure the commenter above was pointing out a contradiction between the excitement in store for Circuit Court appointees and the profession by strict textualists that their philosophy does not necessarily boil down to sausage-making. Most of us here are lawyers, and most of us here can profess that our jobs can be boring at times because many of the answers are easy. I think the contradiction comes in when one tries to find the space between "just apply the law" and "the job of a judge isn't necessarily mechanical." As a practitioner, it would seem to me that the latter statement is a rationalization for the demonstrable impossibility of the first when viewed in the real world. But I'm not a theorist, so maybe I'm out of my game.
5.27.2009 8:36am

Many, Many thanks. Vat II liturgical "reforms" have just about killed incense, with the exception of Masses of the Resurrection. You might want to try the Melkites. I used to attend one of their parishes back when I lived in a town that had one. (Unless you live near Boston or Younsgtown, good luck.)

I can guarantee that the Melkites are not a church for those allergic to incense. Or good music.
5.27.2009 9:01am
Hoosier, do you have any evidence to support the idea that non-catholics who marry catholics don't convert at all if not right around the marraige? I can think of at least a half a dozen examples, of celebrities and people I know who converted years after marrying a catholic, and several of the "deathbed" conversion variety. Part of the problem is that if the person has had a previous marraige, there will have to be an annulment which has to go through a legal process that can take awhile. It used to be that people would just wait but now they no longer do. Also there used to be more pressure on "disparity of cult" weddings in the RCC. Like you couldn't be married in the church, but in some ancillary building like the rectory, with a very modest ceremony. Now, you just sign another form and can have a normal church wedding.

Oh and incense is making a comeback. They use copious amounts at my parish every week.
5.27.2009 9:49am
Professor Chaos:
I think incense is making a comeback. We use it pretty regularly in my parish, and they used it in all three Masses during a retreat in which I participated last weekend. But don't let that stop you from attending a Melkite Divine Liturgy sometime. It's a neat experience. I'd like to try some of the other Eastern Rites sometime, but that's easier said than done.
5.27.2009 11:29am
Barry Loberfeld (mail) (www):
To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," Breyer reveals that its purpose was "to create a framework for democratic government — a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible?

At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when [E.J.] Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution — who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms — as his alter ego — the monstrous presence of ...

The answer is here.
5.27.2009 12:11pm
I think none of us would have been surprised if any of the candidates had made that statement. And if any of that group could have said it, the conclusion I draw is that such considerations have very little influence on how judges decide cases. And I'm not being cynical here; I'm quite certain that are being utterly sincere when they say these things. I just don't take these types of statements seriously as predictors of anything.
5.27.2009 12:16pm
His second wife was a sister for quite some time.

Yikes! Um, how did she stop being his sister?
5.27.2009 12:57pm
David Welker (www):
Orin Kerr,

A couple of thoughts about this. Okay, so conservatives don't believe the law is mechanical. Then exactly what is their beef? As a former member of the Federalist Society, I have seen enough conservatives work themselves into such a self-righteous lather, insisting anyone who doesn't do it their way is illegitimate and violating the rule of law. I myself moved away from this approach and from my membership in the Federalist Society when I decided that absolute objectivity in the law in the hard cases was not possible and all this talk about "judicial activism" was simply overblown. But that is just me.

Here is what I think. For some hard cases, there simply is no such thing as a right answer. Take a 30-70 case. First, I have to concede that such an animal exists. But, in truth, it is a fiction. Saying that one side is 30 and the other side has 70, what does that mean exactly? These are subjective probabilities and not empirical probabilities i.e. they are arbitrarily assigned. There is no really objective way to say that one side is 30 and the other side is 70. That is why I would prefer a range. One way of looking at the evidence concerning interpretation, and maybe you arbitrarily assign one side 30 and the other side 70. Another perspective on that same evidence, and things are reversed, and you arbitrarily assign the side that got 30 an 80 instead and the side the got 70 before 20. This is certainly not out of the question. Because, these probabilities are just a short hand of trying to quantify a judgment that is qualitative in nature. Looking at the evidence with one perspective and making a certain set of assumptions, you find one approach to more persuasive than the other. Looking at the evidence with another perspective and with a different set of assumptions, you might find a different approach more persuasive.

Already, even though all of the above is pretty complicated, it still is a simplification. Because there is often (usually) more than 2 interpretations one might assign to the words in a statute or other legal document. In general, there are N interpretations, right? This matters, because with more possible interpretations, the probability of "getting it right," whatever that means exactly, goes down.

Anyway, if you take this framework as a reasonable one, what is the definition of an easy case? Well, I suppose there are a least two different things one might mean by easy. One way a case might be easy is if the law that controls is really subject to only one reasonable interpretation. That is, for all "reasonable" perspectives and assumptions you could make, there is only one possible way of interpreting the law. A second way a case might be easy is if, even if there are multiple reasonable interpretations, they all point in the same direction for that case.

In contrast, a hard case would be defined as where there are multiple "reasonable" interpretations that one might take based on reasonable but different perspectives on the evidence of the law, and assumptions about how things should be reconciled and the choice among these interpretations is outcome determinative.

Now, in the real world, easy cases are much more common than hard cases. Especially since a lot of cases simply involve everyday matters like traffic laws or negligence where the law tends to be fairly clear in most cases and instead the case turns on matters of fact rather than interpretation of law.

But, hard cases are not so rare either. In fact, today's traffic case is probably only easy because their is so much precedent. And what is precedent exactly? One definition I would offer is that precedent is the process by which we pretend that hard questions of law are actually easy, by following whatever a previous court did. But, if you look at the original sources without the benefit of precedent, you might actually see a lot of ambiguity. When the automobile was first invented, what would be today's easy traffic case would have once been yesterday's hard traffic case.

My point is that ambiguity in the law is not hard to find. Just look for areas of law where there is not a lot of precedent. It is really hard for legislatures to make statutes that encompass all the complexity of the real world.

The game you were playing with subjective probabilities in a previous post, where you articulated the hard case as the one where the probabilities were 50-50 on each side, I think greatly understates the actual number of hard cases because these are subjective probabilities, not empirical probabilities. That is, there is a lot of uncertainty about what probability to assign to each side. But, you are probably working with same flawed framework as Barack Obama who asserted that 99% of cases are clear. This makes sense if you assign equal probability to each way one might assign subjective probabilities to a case. 0-100, 1-99, 2-98, ... 100-0. Then, out of approximately 100 outcomes, only one outcome is a 50-50 case. And how rare is that, you might think. Well, the fact that these probabilities are "made up" is part of the problem. This isn't the right framework. If you think instead in terms of the ranges of probabilities that one might assign to the cases, then uncertainty crops up much more often. Anyway, my picking on you here is not a right-left issue obviously. I think Barack Obama is equally wrong when he asserts that 99% of cases are easy. (Of course, if you include all the traffic and negligence cases -- many of which are indeed very easy, then obviously then saying that 99% of cases are easy is a vast understatement. I am assuming we are excluding these cases, which involve such common situations that there rarely anything new absent a change in the law.)

Anyway, so apparently conservatives concede that there are such things as hard cases. They do exist. But then these same conservatives start throwing a hissy fit when you suggest that resolving them should involve the exercise of empathy. "You must mean that you should rule based on your feelings for whatever side you like -- and that would violate the rule of law!" they whine. No, that is not what is meant at all. But thanks for demonstrating that you are capable of interpreting words in a very uncharitable way.

Oh, apparently some conservatives do acknowledge that for genuinely hard cases, there is a place to consider real world consequences. That is, if the correct interpretation of a statute is not clear, then the judge should choose the interpretation that has sensible consequences rather than the interpretation that, although linguistically feasible, has ridiculous consequences. Judges shouldn't assume that legislatures intend absurd results. In fact, if absurd results are a consequence of a particular interpretation, that is a really good reason to avoid that interpretation, although it is perfectly fine from a linguistic perspective. In other words, unlike conservatives when they are parsing Barack Obama's statements on empathy, judges should exercise the principle of charity in interpreting ambiguous words written as law by legislatures.

Anyway, if you do concede the importance of considering real world consequences, then of course empathy is not only important, it is absolutely critical. You need to put yourself in the shoes of both of the parties and consider the impacts of the law on those parties and similarly situated parties. This is absolutely an exercise in empathy. A judge (hopefully!) is unlikely to be either a plaintiff or a defendant in a sexual discrimination case. Therefore, they must exercise empathy and consider the impacts on both of the parties in order to perceive the consequences of different interpretations.

In a hard case, a judge should not choose an interpretation that defeats the purpose of a statute. So, for example, they should not choose an interpretation that practically prevents all plaintiffs who have suffered real injuries from ever stating a cause of action under a particular statute. In order to perceive whether a this particular consequence is likely, they must put themselves in the plaintiff's shoes and ask whether most injured plaintiffs would lose their rights under a particular interpretation or not.

Of course, this is just one example. Obviously, similar empathy must be exercise in perceiving the consequences for the defendant. In hard cases, one should not choose interpretations that would prevent the vast majority of defendants who in fact have a meritorious defense from asserting that defense. But, to perceive whether this is a likely consequence for most defendants, the judge has to imagine himself as the defendant or someone who is similarly situated to the defendant.

The bottom-line is that conservatives who concede that real world consequences should be considered when resolving hard cases must also concede the necessity of employing empathy, because without empathy, the actual consequences of one interpretation versus another cannot be assessed.

I know that is not as fun for members of the Federalist Society as bitching about how using empathy MUST mean favoring certain groups over others and how this violates the rule of law. Give me a break. And conservatives like Orin Kerr wonder WHY liberals think that many conservatives fail to recognize ambiguity in interpretation. Look at how conservatives insist the liberals absolutely MUST think that certain groups should be favored over others when they talk about using empathy. THAT is the ONLY thing it could possibly mean.

Here is another point. I think that many conservatives are perfectly capable of perceiving ambiguity. I also think that many conservatives are very selective in terms of when they choose to exercise that capability. (And, too be fair, many liberals are too.)
5.27.2009 2:01pm


We Papists often say "She was a religious." But very few non-Papists have a clue what we are talking about when we say that. "A religious" and "religious" aren't the same things," etc.

Plus, I didn't say "his sister." I said "a sister." And one can stop being a sister, yes?
5.27.2009 2:41pm
Sorry. Again I made an assumption (not "Assumption") about terminology that was unwarranted.

A "sister" lives in the world. A "nun" is cloistered. But I should just have said "nun." That's a common word for both these days.
5.27.2009 2:44pm
Asher (mail):
the Bork comment was interesting because it suggests something I have found to be accurate and is sometimes overlooked -- that no one believes in a mechanical application of the law.

I wouldn't concede that. I'd say that no one - or at least no one who's familiar enough with these debates to appreciate how easily such a position can be made to look foolish - admits to believing in a mechanical application of the law. But I think a lot of originalists do believe, though they may not state so openly, that on most questions the Constitution is fairly plain and its meaning can be mechanically derived. Scalia's opinion in Heller, for instance, at least professes to rely on a pretty mechanical brand of analysis - just look up all the words in the text in dictionaries of the appropriate vintage, see how they were used in other texts of the time, canvass purpose clauses in other amendments and statutes and see to what extent they restricted their operative clauses, and presto, you've got your answer.
5.27.2009 3:35pm
Assistant Village Idiot (mail) (www):
Well, I'm sure you could find some conservatives who believe in a nearly-mechanical Constitution and insist that anyone who doesn't agree wants to just make it up as they go. What I more generally find - much, much, more often - are conservatives who believe that liberal activist judges use this reasonable acknowledgment of hard cases as cover for unreasonable conclusions. Perhaps you disagree. Perhaps they are only responding to confirmation bias based on what they read in conservative media. But it does seem that a straw man has been set up here.

The world certainly contains shades of gray. But it is my experience that when people are quick to tell you there is no black-and-white, they are always suggesting you choose a darker shade.
5.27.2009 10:13pm

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