On the Roe'd to Perdition

I haven't seen as much of the Alito hearings as I would have liked, but it certainly appears that the Democrats have been unable to lay a glove on him. Though I suppose this should not be surprising since Alito has been a respected federal Appeals Court judge for 15 years, and appears to have broad, bi-partisan support within the legal community.

What is painfully obvious, however, is the extent to which the USSC's terrible decision in Roe v. Wade more than 30 years ago continues to dog our legal and political systems. While I think that the substantive policy position reflected in Roe is reasonable (no restrictions on abortion during the first trimester, etc.), the sad fact remains that court overreached in divining a constitutional right to abortion from "the penumbra" of privacy rights discerned in a text that remained silent on the issue. By getting ahead of popular opinion on this controversial issue and removing it from the political realm of state legislatures (approximately one third of states had already legalized abortion to varying degrees at the time Roe was decided), the USSC precipitated thirty years of increasing political polarization and controversy, and lessened support for the rule of law and the sanctity of precedent.

What I find appealing about judges like Chief Justice Roberts and Judge Alito, is that they are humble about the role of the judiciary in determining public policy. I believe that this humility is a good thing for many reasons, not least of which is that policy making is by necessity a trial and error process, where government must learn from what works (and what doesn't) and adjust policies accordingly. This pragmatic and empirical approach is incompatible with the concept of precedent, where what has been decided must stand. And without precedent, the stability and predictability of our legal system would necessarily suffer.

The most important manifestation of this humility is judicial restraint: resisting the temptation to serve one's own sense of natural justice in controversies where the law (and precedent) don't provide clear guidance for a decision.

It perhaps seems odd to be celebrating judges for suppressing their sense of natural justice, but this is an important requirement for a society that wishes to be ruled by laws and not by men. After all, an absolute monarchy is perhaps the purest form of rule based upon an individual's determination of natural justice: whatever the king (or queen) decides on a given day is the law. And a monarchy by committee, with nine members appointed for life and answerable only to their sense of what is just in any given case, would be no different. Of course, we might welcome the wisdom of some of their decisions. Perhaps a system of government where nine wise men (and women) decide the law as they go along would produce a better and more just society, though I am not aware of where it has worked in practice (politburo anyone?). But such a system would certainly not be democratic and the protections afforded the rights of individuals would certainly be less secure than they are under our current approach with divided powers, a written constitution, and legal rights determined by legislation, rather than judicial fiat.

Judicial restraint has become increasingly rare in our litigious society, where the legal culture rewards lawyers and jurists who develop novel theories of the law. Restraint also violates one of the basic rules of human nature: that bright, ambitious, and successful people generally seek positions of power and authority, and what use is power if you don't use it? The temptation to use the power of the bench to advance one's own views of what is right and just must be tremendous. And where is the glory in declining to decide a controversially issue?

The beauty of Judges like Roberts and Alito is that they are smart and ambitious, but they have the self discipline needed to resist the temptation of power. They are like that rarest of beasts, surgeons who advises their patients against surgery. Because precedents, like operations, once made are very, very difficult to undo.