Courts claim to be in the business of interpreting the meaning of laws. But the oddly limited or expansive meanings that are selectively applied to the words in those laws suggest that they are engaged in a completely different enterprise — namely, politics. The idea that courts are just another political institution has long been held by political scientists, including myself. We tend not to be hypnotized by the black robes, marble columns, and Latin jargon into buying the notion that judges are some sort of special priesthood, immune from and indifferent to politics.
Judges are just regular pols without the typical reelection pressures but also without the typical resources to advance their agenda. Legislators have the power of the purse while executives have the power of the sword, but judges just have the power of their word. The limitation on the power of judges is not the constraint of reelection, but the constraint of having to convince the other branches and the public to do what they say. Cultivating the image of a disinterested priesthood enhances the power of judges to get others to do what they say. But if the judges demand too much, they undermine their priestly image and erode their future power.
Judges have been in a particularly strong position to get others to do what they say for the last five decades. Early in the civil rights struggle our democratic institutions failed us, protecting obviously unjust and illiberal practices. After initially siding with these illiberal forces (see Dred Scott or Plessy), the Courts detected a shift in elite opinion and joined forces with those elites to consolidate a new, progressive coalition. The Courts could rightly take credit for having helped rescue us from the failure of our democratic institutions.
Because they were instrumental in civil rights, judges accumulated a considerable amount of political capital and popular goodwill. And they’ve been spending that political capital ever since. The civil rights era gave the Courts the role as guardians of our liberal virtue. So, it’s hard to suggest that the Courts have overstepped their bounds, usurped the power of other branches, or arbitrarily interpreted the law without being accused of opposing the liberal virtue that Courts are supposed to protect. Past critics of over-reach by Court included segregationists, so if you criticize judicial over-reach today on some other topic you must also be a segregationist.
This is especially true in Arkansas, where the memories of desegregation battles at Little Rock’s Central High School are particularly painful. You cannot criticize Arkansas Courts for over-stepping their bounds or abusing their authority without being accused of being Orval Faubus — and there is no worse political insult in Arkansas. The problem with immunity from legitimate criticism is that Arkansas Courts are especially unaccountable for judicial over-reach or arbitrariness.
The most salient recent example of this is the action of the state Supreme Court in the Lake View school funding case. The state constitution does say that the state must “maintain a general, suitable and efficient system of free public schools.” But who knew that general, suitable, and efficient meant that there was a specific dollar amount that had to be spent on every student in Arkansas? And who knew that that amount had to increase by at least the rate of inflation every year? I doubt that the authors of the Arkansas Constitution knew that general, suitable, and efficient meant all of these things, but the members of the Arkansas Supreme Court sure did. And they figured out how much the legislature needed to spend per pupil and for school infrastructure by appointing Special Masters, who convened public meetings, received testimony from interested parties, and wrote a report summarizing their recommendations.
Of course, there already exists a body for holding public meetings, receiving testimony from interested parties, and deciding upon the appropriate levels of public spending — it’s called the legislature. With the appointment of Special Masters the Arkansas Supreme Court clearly usurped the legislature’s power. And the Special Masters showed no restraint in determining spending priorities for the state — a power reserved by the Constitution for the legislature. They declared: “[School districts] should have the means to meet the challenge if the State remains committed to the all-important practice of funding education first.” Where in the state Constitution does it say that education has the first priority on resources?
Some have argued that the responsibility to fund education first is implied by having education as the only policy area specifically mentioned in the Constitution. I’m sorry to say that these people have never read the Arkansas Constitution. It also specifically mentions a number of other policy areas, including the need for an agriculture, mining, and manufacturing policy. Specifically, it says that the legislature must pass laws to “foster and aid the agricultural, mining and manufacturing interests of the State.” If the Court and its Special Masters see the words general, suitable, and efficient as meaning that education must be supported as the first priority and at a specific, ever-increasing amount of spending, why haven’t they interpreted “foster and aid” to mean that the legislature must provide specific subsidies to agriculture, mining, and manufacturing?
Clearly we have a Humpty Dumpty Court. The words mean what they want them to mean. General, suitable, and efficient have expansive meanings if it suits their purposes while foster and aid mean essentially nothing. Only judges, as the special class of high priests, possess the magical glasses that allow them to read between the lines of the Constitution to see that one phrase implies the moon while the other implies bupkis.
And now the Arkansas Supreme Court is at it again. They are currently hearing arguments on whether a state law exempting state contracts in excess of $5 million from competitive bidding violates the state Constitition. A plain reading of the text would suggest that it does. The Constitution states: “All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor shall be given to the lowest responsible bidder, under such regulations as may be provided by law.”
But Circuit Judge Jay Moody ruled that the state law did not violate the Constitution because he interpreted the provision as only applying to contracts from county governments — not contracts made by the state government and its agencies. I’d like you to re-read the constitutional provision and ask yourself whether this is the most reasonable interpretation of the language. Doesn’t the phrase “in any county” seem to describe the location of public buildings and bridges, emphasizing that the bidding requirement applies in all parts of the state, not the government agency engaging in the contracting?
We don’t know how the state Supreme Court will rule on the matter, but figuring that out requires a political, not a linguistic analysis. They can and will interpret it in any way the see fit to advance their interests. The words can mean just about anything they want them to mean. “The question is which is to be master — that’s all.”
UPDATE: The Arkansas Supreme Court interpreted the cluase as applying only to county contracts and upheld the state law. The decision can be found here.
Arkansas….the new California? Sounds familiar to a recently passed issue the California Supreme Court is hearing. Who needs voters when you have the courts.
The “priesthood” image is apt, because in pretty much all socieites without freedom of religion, the main role that religious leaders play in politics is to exercise a sort of free-floating veto over the state’s actions, the purpose of which is to set boundaries for what actions are not permitted by the community’s shared ideology of political legitimacy. They play this role because any model of legitimacy (including political legitimacy) is by definition a theory of moral law, and where freedom of religion isn’t practiced, theories of moral law are generally taken to fall under the special competence of religious leaders.
The main shift with the rise of religious freedom has been to transfer over to the state the responsibility of policing the boundaries of what actions are permitted by the community’s shared ideology of political legitimacy. This job remains, and always must remain by the nature of the case, essentially an exercise in moral reasoning. But this particular branch of moral reasoning isn’t taken to be a specifically religious field of inquiry anymore.
The novelty in the 20th century has been the further delegation of this job, at least to a very large extent although not totally, from the state in general to the courts in particular. And I think Jay is right that the moral high ground the courts gained during the civil rights struggle is a major force behind that – the nation must have an arbiter of moral law (at least insofar as moral law sets boundaries for politics) and here we have the elected branches comprehensively failing to perform this function, while the courts did perform it. And ultimately what this really means (since we’re talking about elected versus unelected branches) is the people losing moral confidence in themselves – they don’t trust themselves to elect leaders who will police the boundaries of political legitimacy. Robert Nagel has written some really smart stuff arguing just this case.
It should be acknolwedged that the people do not in fact do a particularly admirable job of electing morally good leaders. But the problem, of course, is that judges are not really much better – they did a better job in the case of civil rights, but I don’t see much evidence that they’re morally superior generally. And transferring power to unelected judges removes all effective accountability. Judges have seized this power and set themselves up as an unaccountable ruling class, and that’s worse than leaving things in the hands of the elected and therefore accountable politicians (however flawed they may be).
The transfer of power was also encouraged by the fact that judges are selected and trained in ways that make them especially good at some aspects of moral reasoning, since most of the same skills that make a good lawyer also make a good moral philosopher (e.g. the ability to interpret ambiguous language, the ability to apply general normative principles to specific cases). If the state wants to delegate the job of moral reasoning and it can’t delegate this job to religious leaders because we believe in freedom of religion, judges do seem like the natural choice.
But judges are only better at some aspects of moral reasoning. They’re actually especially bad on some other aspects – most importantly, the fundamental moral principles that govern political action must be grounded in the moral consensus of the community and not in some esoteric philosophical theory that is only known to an elite class, still less in the selfish interests of a political faction that captures the courts.
The clear conclusion is that the job of policing the boundaries of what actions are morally permissible under the community’s shared ideology of political legitimacy is one that cannot be safely delegated to anyone. It must be the general duty of the whole government, just as obedience to the constitution and the laws is the general duty of the whole government.
Courts differ from executive branch agencies and legislatures in the length of the feedback cycle (executive agencies operate in real time, legislatures meet on a yearly schedule) and in the filters through which theor information must pass (one must have a cause for complaint, or “standing,” to appear in court, while anyone can present testimony to a legislative committee). Now that courts have assumed the power of the purse (e.g., Kansas City schools, Arkansas schools), the Court’s selective filters present a serious threat of taxation without representation. One of the complaints in the original Baer, et. al. versus Miike lawsuit against the Hawaii State Departmen of Health policy restricting marriage licenses to heterosexual couples was that this policy injured Ninia Baer by denying her access to her partner’s employer-funded medical plan (or maybe it was Baer who was denied. Sorry, my memory is hazy here). The plaintifs appeared. The defendants (the State Department of Helth) appeared. Insurance companies and premium payers did not have standing and so were not represented. In such a case, party A sues patry B (usually a government agency) and asks the court to order party B to tax unrepresented party C.
At least in your legislature, party C gets to testify.
Sorry for the odd typo. “One must have a cause for complaint, or “standing”…
I just want to add a small point to Greg’s excellent comment. He writes “[The Courts] did a better job in the case of civil rights…” I tried to emphasize that the Courts did not initially do better on civil rights. Remember that the Courts gave us Dred Scott which said that no African-American person could be a citizen in any state. And the Courts gave us Plessy, which said that Jim Crow laws were permissible. The Courts only came around in Brown after elite opinion had already moved to support desegregation.
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