The fallacy of the amoral judiciary

In watching the build-up to and parts of the actual confirmation hearings for judge Alito and other recent nominees, I'm struck by how very broken what we appear to be doing is.

Specifically, it appears that we intend for judges to be virtually computer-like in their application of laws passed by the legislature and historical precedent. Any hint that a judicial candidate might have opinions on moral matters, or worse yet apply moral judgment in carrying out his or her duties is seen as endangering confirmation.

So, do we really intend that judges be this computer-like, or is the process we see in public just a farce? If the process is just for show, and the participants all realize, expect and intend that a judge must apply moral judgments at times, then that tells us something about what the producers of the process think about those of us observing...

But, for the purpose of the remainder of this article, I will take the process we see at face value and see where it leads, since this interpretation correlates well with other observations of the state of our government (in particular, the behavior of the legislature).

If we suppose that the function of a judge is to (a) find the facts of the matter and (b) apply the sum of the past products of the legislature (statutory law) and the judiciary (case law) to deciding the cases that come before him or her, without having or applying any moral perspective, then we are saying that only moral standards encoded in statutory or case law can be applied to deciding new cases. The finding of facts does not involve moral judgment (else they wouldn't be facts). By this view, new case law is not supposed to introduce new moral standards going forward, so we would expect that to the extent the case law history is good, it is also empty of moral content outside the statutory law in effect at the time the case was decided. Therefore, only statutory law is available as a source of bringing morality into the deciding of cases.

If the only way of bringing morality into the deciding of cases is to encode it in statutes, then we will find ourselves "legislating the edge cases" to the point where the laws are overly numerous and complex. A body of law of that nature is completely unreasonable. A system of rules of that size and complexity is not something people can keep in mind as they go about their daily interactions with the people around them. It is overspecifying correct behavior to the point where it becomes disconnected from reality. If you legislate to the edge cases, you lose sight of the centrality of the majority case. If you have to spell out every possible exceptional condition, you end up hiding what might otherwise be a clear moral principle that people could live by.

And, as it turns out, we do have a legislature that legislates the edge cases, creating a monotonically increasing body of statutory law, twisted and convoluted to the point of being both opaque and irrational. This supports the notion that the face-value interpretation of what we see in the nomination and confirmation process for U.S. Supreme Court justices applies. Our system is broken because it has come to the point where people seem to actually believe that moral behavior can be sufficiently encoded into statutory law that the judiciary can be amoral.

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