There is no such thing as objective judging
(credit: Flickr)
In this commentary, UC Irvine’s Erwin Chemerinsky argues that constitutional law cannot escape the views and values of the judges that shape it.
Tonight at 6:30 p.m., Chemerinsky will appear at the Constitution Center with Georgetown’s Nicholas Quinn Rosenkranz for a debate over whether or not the Supreme Court is truly objective. The event is sold out, but you can watch live on our website.
There is no such thing as objective constitutional law, or objective law in any area. Supreme Court justices inevitably must make value choices in deciding cases, and these decisions inherently are a product of their life experiences and views.
Inescapably, constitutional law involves the balancing of competing interests, and there is no “objective” way to do this. It is why a conservative, like Antonin Scalia, and a liberal, like Ruth Bader Ginsburg, will so often disagree even though they are equally smart, conscientious, and knowledgeable. No constitutional rights, not even the prohibition of racial discrimination, are absolute. Courts constantly must decide if there is a compelling or at least a legitimate government interest that justifies infringing a right or discriminating.
Is the government’s interest in protecting children sufficient to justify a law that prohibits minors under 18 from buying or renting violent video games without parental consent? Does the desire to protect the privacy and sensibility of those grieving justify forbidding offensive protests at the funerals of those who died in military service? Does the government have a compelling interest in diversity in the classroom sufficient to permit affirmative action by colleges and universities? Do laws that discriminate against gays and lesbians by denying them the right to marry advance any legitimate government interest?
There is no objective way to answer these questions, and they are representative of the issues that constantly arise in constitutional adjudication. The Fourth Amendment prohibits “unreasonable” searches and seizures, and the Supreme Court has said that reasonableness is determined by balancing the benefits to law enforcement against the intrusion on privacy. For example, in June 2013, the court held, 5-4, that police can take DNA from a person arrested for a crime because the gains to law enforcement in solving unresolved crimes outweigh the invasion of privacy.
The impossibility of objective constitutional law is inherent to the Constitution itself. The document was intentionally written in broad, ambiguous language; that is how we can continue to be governed under a document written in 1787 for an agrarian slave society. What is cruel and unusual punishment? The Supreme Court long has said that this is determined by “evolving standards of decency.” Is it “cruel and unusual” punishment to impose a life sentence for shoplifting or a death sentence for a crime committed by a juvenile?
The Constitution forbids laws “respecting an establishment of religion.” But do Christian prayers before town board meetings, or even prayers in schools, violate this? The Constitution gives Congress the power to regulate commerce among the states. Does this mean that Congress can prohibit restaurants from discriminating or people from growing marijuana for their own medicinal use or people from having guns within 1,000 feet of a school?
Justices on the Supreme Court have tremendous discretion in answering all of these questions and countless others like them. There is no objective way to answer them. I actually have no idea what it means to speak of “objectivity” in the law. It is tempting to imagine that the law exists apart from the judges and that all the judges need to do is find it and mechanically apply it. But it never has been that way and never can be. Judging is a human activity, and the outcomes depend enormously on who is on the bench.
Supreme Court justices often pretend that it is otherwise. When John Roberts went before the Senate Judiciary Committee for his confirmation hearings in the summer of 2005, he said that Supreme Court justices were just like umpires calling balls and strikes. Sonia Sotomayor, at her confirmation hearings in 2009, said that justices just apply the law; they don’t make it.
These statements are nonsense, and these justices know it and should have been ashamed of presenting such a misleading description of what the court does. Calling balls and strikes does not require value choices by umpires. Everything the court does makes the law. When the court decides whether states may forbid gays and lesbians from marrying, either way it will determine the law in many places across the country.
The values and views of the judge matter enormously and always will. There is no such thing as objective judging, and it is wrong to pretend otherwise.
This story originally appeared in The Philadelphia Inquirer.
Erwin Chemerinsky is the dean and a distinguished professor of law at the University of California, Irvine, School of Law, and the author of The Case Against the Supreme Court (Viking, 2014). You can watch his appearance tonight at the Constitution Center live on our website beginning at 6:30 p.m.
Recent Stories on Constitution Daily
Fresh off midterm losses, President Obama steps up to the bully pulpit
