Like Conor Clarke, I can only assume that anesthesiologist Ronald Dworkin’s op-ed opposing the health care reform bill will come as an unpleasant surprise to the other Ronald Dworkin. Quite coincidentally, some whim impelled me to pluck (the more famous) Dworkin’s Law’s Empire off the shelf earlier this week, and I was immediately saddened that the whim hadn’t struck during the Sotomayor confirmation kerfuffle. The introduction is a wonderfully concise takedown—from 1986, mind you—of the still-prevalent tendency to talk as though the the big jurisprudential controversy is over whether judges should follow the law or improvise and enforce whatever they think is the wisest policy. To be sure, some judges do, whether disingenuously or through self-deception, hand down rulings that seem a lot more like expressions of policy preference than a credible good-faith attempt to determine what the law is. Maybe most of them even succumb to that temptation at one point or another. But this is not actually a helpful way to think about most legal disagreement—and it helped to make the Sotomayor hearings singularly unenlightening on both sides. You had conservative senators, many of them lawyers, who either believed or pretended to believe that a judge’s reasoning being shaped by her gender or ethnic background or experiences could only be understood as a crude commitment to ignore the law and rule in favor of particular kinds of defendants. And indeed, if you think the law is always a “plain fact,” as Dworkin puts it, with the judge’s only task being to hit the library and look up what it says, then what else could it mean? On the other side, it let Sotomayor get away with the ridiculous assertion that her judicial philosophy consisted of “fidelity to the law,” which is a little like saying that your chess strategy is to checkmate the king. Yes, of course we want a justice whose judicial philosophy aims at fidelity to the law—but that’s the goal, not the content. The hard question, the interesting question, is what that means and how you achieve it.
August 20th, 2009 · 3 Comments