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Judging is not social policy-making

Most liberal commentators and far too many judges sees courts as agents of social change rather than finders of fact and adjudicators of discrete legal disputes.

(Images: Gavel by Bill Oxford; Supreme Court building by Anne Sullivan | Unsplash.com)

In addition to broad discussions about the role that Amy Coney Barrett’s religious faith might play on her judging, her detractors have also focused on her body of work as a judge on the 7th Circuit Court of Appeals, where she has sat since her confirmation in 2017. A representative example of this is a recent article in Current Affairs by Nathan J. Robinson. With the tagline, “Her rulings reveal a judge who serves the interests of Trump, telemarketers, debt collectors, bureaucrats, and cops,” Robinson asserts that Judge Barrett should not be on the Supreme Court. But in his condemnation of Barrett’s votes or opinions in a number of cases, Robinson does not make a single reference to the statute or Constitutional provision that was at issue in the cases. Rather, he complains about the social outcome of the case, and imputes upon Barrett a judgment that the social outcome is her preference, rather than the legally compelled one.

This is because, like most liberal commentators, Robinson sees courts as agents of social change rather than finders of fact and adjudicators of discrete legal disputes. The only question that matters to Robinson is, as he puts it, “how would [Barrett] rule on issues that matter? Who would be helped or hurt by these rulings?” Note that he is unconcerned with the law that she would be interpreting, or how she applies the law to the facts before her. Rather, his only ostensible concern is the social policy that would flows from the decision. This is because he sees the role of the judge as a policy maker, not a disinterested arbiter of disagreements.

Unfortunately, many judges share that judicial philosophy (including present and past members of the U.S. Supreme Court), a refreshingly honest statement of which was made by another member of the 7th Circuit bench, Senior Judge Richard Posner, upon his retirement from full-time service in 2017. In an interview with the New York Times about his judging philosophy, Judge Posner said, “I pay very little attention to legal rules, statutes, constitutional provisions. . . . A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is a sensible resolution of this dispute?” Of course, one problem with such a judicial philosophy is that one man’s “sensible resolution” is another man’s irrational imposition. But the broader issue is that it this an express abdication of the proper role of a judge to apply the law to the facts before him, not to make social policy.

While judges are rarely so candid about approaching cases in this way, in the recent history of Supreme Court adjudication on major social policy disputes, this is the regnant philosophy. And it almost always cuts against Catholic faith and practice. For example, few if any scholars of the Constitution will defend the legal reasoning in Roe v. Wade even while strongly supporting the social policy that informs it and the outcome that obtains. This includes the late Justice Ruth Bader Ginsburg.

Two other seminal cases in the Court’s recent history that impose liberal social policy outside the scope of Constitutional provisions are Planned Parenthood v. Casey (the 1992 case affirming and strengthening the holding in Roe), and Obergefell v. Hodges (the 2015 case striking down state laws that defined marriage as between one man and one woman). Both of these decisions were written by Justice Anthony Kennedy, and neither made any serious reference to the Constitution, or even more general legal principles, in their sweeping announcement of social policy. Rather, they were completely driven by a desired social outcome.

In Casey, for example, Justice Kennedy said, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. . . . Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state.” Nothing about what might be “at the heart of” the United States Constitution, or about how its provisions are completely silent on the issue of abortion. Similarly, in Obergefell, Kennedy opined, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.” Anything about Constitutional provisions preventing states from defining marriage in any particular way? No. These decisions are not about law. They are about policy outcomes.

And because most liberal legal commentators embrace this judicial philosophy, judges like Barrett are not evaluated on how they interpret laws, or apply those laws to facts, but rather about the social outcomes that obtain or flow from their decisions. Nor are Constitutional or statutory provisions even examined in such criticisms. The only measure of the judge is policy outcomes. Robinson and those like him might have examined the law to ask how it could be changed so that a judge is not compelled to apply it the way she does. They might complain that it is not the judge but the law that is faulty. But rarely, if ever, seems to occur.

Take the Affordable Care Act, for example. Joe Biden never misses an opportunity to claim that the reason Barrett’s nomination is proceeding in an election year is that Republicans want to overturn the Act. And this echoes the Democratic Party line. Vice Presidential candidate, Kamala Harris, for example, has said that the nomination of Judge Barrett is part of a program to reverse the ACA and “overturn our right to make our own health care decisions.” And Senate Minority Leader Charles Schumer complains, “The American people should make no mistake—a vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.”

Absent from any of these charges is any consideration that the ACA might be violative of the Constitution, or even that it matters if it is. From the left, it is never asked whether the ACA is a bad piece of legislation, or how it can be repaired to pass Constitutional scrutiny. Only its effects matter, not any legal foundation for it. Policy, not law, drives the criticism.

Thus, when a judge like Amy Coney Barrett explains that “[a] judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold,” she cuts against a broad swath of the judicial philosophy of American legal commentators and even courts. And her detractors never ask how the law or Constitution should be changed to effect the policy they desire. Rather, they condemn Judge Barrett for her heartless and “fundamentally cruel” view of the law, as extreme leftist Mark Joseph Stern put it in Slate.

But Barrett is correct, and her judicial philosophy is the only way that we can rely upon the stability and predictability of the law. In Robert Boldt’s play, “A Man For All Seasons,” about the life of St. Thomas More, More is challenged by his son-in-law William Roper when More says that he would give the devil the benefit of the law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down . . . d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

As a judge, rooted in the Catholic tradition, Prof. Barrett will wade through the thicket of the law to arrive at decisions that the law demands. Policy-making is for policy-makers; Judging is for judges.


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About Kenneth Craycraft 2 Articles
Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, the seminary for the Archdiocese of Cincinnati. He holds the Ph.D. in theology from Boston College, and the J.D. from Duke University School of Law.

8 Comments

  1. As a judge, rooted in the Catholic tradition, Prof. Barrett will wade through the thicket of the law to arrive at decisions that the law demands.

    What if the law demands that which is intrinsically unjust? Why is there a law in the first place and why does the state have the authority to enforce that law? Consider the thoughts of St. Irenaeus, Bishop of Lyons (died ca. 200 AD):

    For since man, by departing from God, reached such a pitch of fury as even to look upon his brother as his enemy, and engaged without fear in every kind of restless conduct, and murder, and avarice; God imposed upon mankind the fear of man, as they did not acknowledge the fear of God, in order that, being subjected to the authority of men, and kept under restraint by their laws, they might attain to some degree of justice, and exercise mutual forbearance through dread of the sword suspended full in their view, as the apostle says: “For he bears not the sword in vain; for he is the minister of God, the avenger for wrath upon him who does evil.” (Romans 13:4) … Earthly rule, therefore, has been appointed by God for the benefit of nations … so that under the fear of human rule, men may not eat each other up like fishes; but that, by means of the establishment of laws, they may keep down an excess of wickedness among the nations.
    — Against Heresies (Book V, Chapter 24, #2)

    Irenaeus saw that the state separates civilization from savagery. Of course, he saw the emergence of the state from a theistic point of view, but he still makes the essential point: civilization is better than savagery. “Murder and avarice,” or, the more powerful killing the less powerful and taking their belongings for themselves, or killing them for any other reason that makes doing so convenient for those more powerful, is savagery.

    Some group of people took charge at some point in the distant past and established the state; Christians like Irenaeus would say this was in God’s providence. However self-serving and tyrannical the government they established may have been, its founders likely considered themselves benevolent, setting up a system where “men may not eat each other up like fishes.” Whatever that system was, it was better than the reign of theft, murder and anarchy. Laws could be enforced because the state was more powerful than the most powerful individual. The prevention of murder and theft seems to be at the very heart of civilization.

    But what if those in power declare that men may indeed “eat each other up like fishes,” as in two-billion innocent human babies being “legally” murdered worldwide in the last half-century? What if rulers reject the very basis of civilized society and, regardless of how well they hide behind the trappings of civilization, basically return to savagery by “legalizing” murder? What then is a just judge supposed to do?

    A judge would do well, in the case of a “civilization” having returned to savagery, to decide cases according to the assertion of Leo XIII in his 1881 encyclical On the Origin of Civil Power: “… if the will of rulers is opposed to the will and the laws of God, they themselves exceed the bounds of their own power and pervert justice; nor can their authority then be valid, which, when there is no justice, is null.” A judge doing that is what is truly “rooted in the Catholic tradition.” To do otherwise is to render unto Caesar authority over innocent human life that belongs only to God, which is idolatry.

    Every judge will be judged by God last, not Caesar.

    • The problem with your comment is that you say “What if the law demands that which is intrinsically unjust?”
      But the critical question is “what is unjust?”, and who decides that something is unjust?
      Every abortion supporter believes that abortion is just. That’s why they support it. They believe that the rights of the mother to not have children are pre-eminent. They believe the child is not a child, but a clump of cells. As far as they are concerned, there is no baby there at all.
      By indulging in these alterations of fact, they can convince themselves that an unjust law is just and vice versa.
      So your argument flies over their head. To them, it is not an argument at all because you have not demonstrated to them that the law is unjust. To them, you have just stated your opinion on abortion.
      So in order to convince them that abortion is unjust, you will need to address the fundamental presuppositions of their argument. Not just say that you declare all unjust laws are invalid.

  2. Just as it was with Justice Kavanaugh, this whole matter comes down to one single word – abortion. To democrats it is the holiest of sacraments – one which must be defended at all costs, to the Catholics and others who view it as murder, it must be ended. All other issues are superfluous and take a paltry second place to this.

    Given how terrible this campaign already is, it will only get worse, and one wonders with fear & trembling – what kind of country will we wake up to on Wednesday morning November 4?

  3. This article is right on target. We have to reign in the Supreme Court and the judicial system in general. A judicial nomination should not be another occasion for debating policy other than whether courts should be making policy. The courts should not be providing cover for politicians who won’t vote for something themselves but are happy to declare that something is “settled law” once the courts impose it. If they want the law changed, let them change it and risk the ire of the electorate. The Constitution provides sufficient means for Congress to change laws it considers unjust without getting the courts involved.

  4. Judicial activism looks like it is a kinder, gentler form of looting. Activist judges gain their activist authority by stealing it from the rest of the citizenry. Judges as robber barons.

  5. “While judges are rarely so candid about approaching cases in this way, in the recent history of Supreme Court adjudication on major social policy disputes, this is the regnant philosophy. And it almost always cuts against Catholic faith and practice. For example, few if any scholars of the Constitution will defend the legal reasoning in Roe v. Wade even while strongly supporting the social policy that informs it and the outcome that obtains. This includes the late Justice Ruth Bader Ginsburg.”

    Any judge who holds this philosophy should be removed from office. This is partly why there should be religious tests for federal offices (even against the constitution). An educated Catholic shouldn’t think like this. It would be a mortal sin (IMO) to rule according to personal prejudice. If the law is unjust, then the trial judge should dismiss the case. In the case of the Supreme Court, its OPINIONS (which aren’t laws or policy) should only be within the realm of permissible jurisdiction.

    “From the left, it is never asked whether the ACA is a bad piece of legislation, or how it can be repaired to pass Constitutional scrutiny. Only its effects matter, not any legal foundation for it. Policy, not law, drives the criticism.”

    It is doubtful that the ACA could ever be made constitutional outside of a constitutional amendment.

    What is the difference between policy and law? The only difference that is relatively obvious is that a business or other institution can have policy, but has no authority to make law.

    The phrase public policy doesn’t appear to have existed before 1810 (I discovered this using Google Books and it was in Boynton v. Hubbard, 7 Mass. 112, Mass. Supreme Court (1810)). There is an article that discusses this (“Law vs. Public Policy: A Critical Exploration” by Theodore J. Lowi).

    Actually, probably both parties are guilty of this (otherwise it would never have been passed in the first place). In a republic the problem partly is that the overriding goal of any legislator is to please his constituents. To enact unjust laws which only affect a few persons (or if they affect many and the injustice is unrecognized or cleverly hid within unjust “enforcement”) and the injustice is never publicly exposed is probably perfectly “justified” in the minds of legislators provided that some pressure group(s) are pleased.

    With regards to enforcement, if a law is defective (i.e. unconstitutional or unjust), it shouldn’t be enforced. It would be easy enough and perfectly moral (except, perhaps, in the case of aid for the poor) for the president to issue an executive order refusing to fund/execute anything not in accordance with the Constitution.

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