Tara Smith, "Judicial Review in an Objective Legal System"
With commentary by Professor Genevieve Lakier
Tara Smith is a professor of philosophy at the University of Texas. Dr. Smith’s main interests concern the nature of values, virtues and the requirements of objective law. Dr. Smith is author of Ayn Rand’s Normative Ethics: The Virtuous Egoist; Viable Values: A Study of Life as the Root and Reward of Morality; and Moral Rights and Political Freedom as well as a number of articles in such venues as The Journal of Philosophy, American Philosophical Quarterly, Law and Philosophy and Social Philosophy and Policy. Currently she is writing a book on objective methodology in judicial review. She is the BB&T Chair for the Study of Objectivism and also holds the Anthem Foundation Fellowship. Dr. Smith is a member of the board of directors of the Ayn Rand Institute.
Genevieve Lakier’s research explores the connections between culture and law. She is currently engaged in a long-term project exploring the cultural history of the First Amendment, and another project exploring the changing role of the state in the regulation of sex. Genevieve has an AB from Princeton University, a JD from New York University School of Law, and an MA and PhD in anthropology from the University of Chicago. Between 2006 and 2008, she was an Academy Scholar at the Weatherhead Center for International and Area Studies at Harvard University. After law school, she clerked for Judge Leonard B. Sand of the Southern District of New York and Judge Martha C. Daughtrey of the Sixth Circuit Court of Appeals. Before joining the faculty, Genevieve taught at the Law School as a Bigelow Fellow and Lecturer in Law.
Presented by the Federalist Society on April 21, 2016.
Transcript
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: We're very happy to have Professor Smith here from the University of Texas where she is a Professor of Philosophy and the Chair of Objectivism, and she's going to be talking about her new book, "Judicial Review in an Objective Legal System." She holds the Anthem Foundation Fellowship and she's on the board of directors for the Ayn Rand Institute. We're also very happy to have our own Professor Genevieve Lakier providing commentary. She graduated from NYU Law then she later clerked for a Judge Daughtrey in the Sixth Circuit. So we're very happy to have both of them here and if you would please join me in welcoming them.
Tara Smith: Thank you all for coming. I see that Valor shirt. That's right up the road, up I-35 and Boston. Valor. Thanks very much Elizabeth for organizing all of this. Thank you to Professor Lakier, if that's the way you... Just so I have a little sense of who I'm talking to, how many of you are 3Ls? 2Ls? 1Ls? Anyone not an L? I'm not an L. A moment ago... as soon as I was like, I don't know, truly, I don't know much about a 1L from a 3L because I've never taught at law school, I've never gone to law school. But I like to have some sense of who you all are. You should all have a handout. I'm very sorry, I caught a few bad typos yesterday on the handout. Sorry about that. I also, should you be interested on your way out?,I brought a flyer, if you wanted to buy my book, it gives you a slight discount, 20 percent discount, so that you can buy the book now out on paperback, which is much more affordable.
Tara Smith: So my title is "Can Courts Get the Law Right? Judicial Review's Problem with Objectivity." The role of the courts, as you know, in judicial review is to uphold the law in cases where its meaning is contested. Courts have to figure out what the law is, what it permits, and forbids, often the extent of government power. But do the courts do this? Lots of people would say, no, without hesitation, no, that's not what actually happens. We all know the common complaint, "Oh, it's all just politics." They do what they wanted to, you know, those two appointed by Republicans, right? Or she was just a political choice. Especially where the stakes are high and the public's differences are keen, think gun rights or gay marriage or Affordable Care Act or back a little before your time, the Bush v Gore election in 2000, right? In lots of these cases, lots of people assume that judges simply indulge their preferences beneath the camouflage of intricate legal reasoning. That's what you guys learned to do in, uh, in law school. You just learned to dress really well in legalese.
Tara Smith: Now it's not simply a popular perception. Increasingly you find law professors and judges themselves signing onto this view. Just a few examples. Georgetown's Michael Simon, "We should relinquish the distinction between law and politics. It's a farce. The Constitution that's a symbol. It's merely a symbol, you know, it inspires some people, that's nice. We get out the flag on the Fourth of July, but it offers no more definitive sort of instruction for what government powers are." The Dean of law at UC Irvine, Erwin Chemerinsky has written, "There is no such thing as objective constitutional law or objective law in any area. Close Book." Even Samuel Alito in a recent interview said, "Liberty means different things to different people." And he wasn't simply reporting on the views of others, you know, he wasn't disapprovingly or distancing himself from that view, no, he went on to say, liberty is not something that is objectively ascertainable this term.
Tara Smith: I don't want to give you an upset stomach, but I want you to be a little disturbed by that. If you think about that, right? Liberty, critical concept at the core of what our Constitution is about. If liberty itself simply means different things depending on who you talk to, how are you supposed to know what liberty you have? You're legally entitled to. How is a given government official, some impressive office in DC, some not so impressive office at the county clerk or whatever, whatever it might be. How does that person know when he would be actually trampling on the liberty that is reserved to the people? It all depends on who you ask on this view, not on what the law is. That I do think is a disturbing sentiment, particularly coming from the Supreme Court justice. Now amidst such skepticism about objectivity in review along with decisions that sometimes do defy the law for ulterior ends, it's fairly easy to despair. Can courts get the law right? Can a judge be faithful to the law whether or not he likes the law in question? I think the answer is definitely yes. Judicial review's problem with objectivity is not that it's unattainable nor that judges are a corrupt breed of artisans in robes. The deeper problem is that we don't fully understand what objectivity is and what it demands in this sphere. Consequently, even those wishing to uphold objective law fail because they misunderstand it.
Tara Smith: So while I'm here to champion objectivity in judicial review, I would caution you against originalism at the risk of turning off some of you because I know that people are often originalist people. While I share many of the originalists' objections to alternative schools, under the microscope, I think originalism proves to be as subjectivist as as the, you know, their loathed living constitutionalist opponent. Okay. Now that's a bigger story that I'm not going to go into here. We can talk about that a little bit in Q&A, if you want to have that, okay. And I've also put a few things on the handout that I won't refer to in the talk but that are just teasing thoughts about some of the differences between what I'm calling objective review and originalist review. But again, I mentioned this in part to try and motivate interested in really figuring out what objective review would demand.
Tara Smith: So let me tell you a little bit then about what I'm going to proceed to do. On the handout, I do give you at least a breakdown, just the sort of table of contents of the book so that you can get a sense of its shape. It talks first about objectivity in the legal system overall to set the foundation for an account of objectivity in judicial review. What I thought I'd do in our time this afternoon is talk a little while about what I have in mind by objectivity, a little bit even less about what I mean by objectivity in a legal system overall, and then focus most of my attention on objectivity in judicial review. Basically with me so far?
Tara Smith: Okay, so let's talk a little bit about objectivity. We can't understand whether or not a court is objective if we don't know what objectivity is. Most people would be very hard pressed to define it. Though we think we know it when we don't see it, right, when somebody has been unfair or prejudice or biased, we're quite ready to allege lack of objectivity, but what is it? Well, most people, most people who use the concept quite readily, would have a hard time defining it. To understand what it is I think it's really helpful to step back and think about why we even want objectivity in any realm, in any sphere of decision making. Who care? Like why should we, why do we even want or care about objectivity? And think about it in a variety of realms. Think about it in hiring a decision of, okay, which guy should get the job, think about it in school admissions, who should get into U of Chicago Law School. Think about other areas where we often seek objectivity from the journalist, from the juror, from the drug researchers who are testing those new drugs, right, from the players on the playing field or the people grading your exams or whatever they are grading.
Tara Smith: In all of these realms, what is it that we're after when we seek objectivity? Basically we want it because we want to reach valid conclusions and make good decisions when it comes to action. When we complain a person or a procedure wasn't objective, we mean it didn't reach its conclusions on the right basis, for the right reasons. They didn't go by the appropriate factors, right? They didn't evaluate the job candidates in the way they should have by the appropriate criteria. They didn't appraise those drugs in the way it should have. We care about objectivity because there's something we want to get right. We want the right students admitted to the school. We want drugs that will be effective and safe. Right? Okay. That's just to say a little bit about why we care about objectivity, so what is objectivity? And here, and I mean, I go into this in much more depth in a chapter in the book, but here I'll just again say a little bit. Basically objectivity is a method of using your mind. It's the the specific method that is best geared to doing what I was just talking about. That is to getting reality right, of getting things right, getting the right answer on the question that you're asking.
Tara Smith: I mean strictly speaking realities and objective realities, not objective. It's not the kind of thing that can be objective. It's for you or me to be objective or not in the way we think about reality or think about the facts. Okay, so that's what I mean by saying objectivity is a method. It's a mental method. It's a deliberate discipline for using your mind, more specifically the discipline that uses logic in the quest to really accurately understand the object in question. Let me say just a little bit more about this. Think for a moment of perhaps the paradigm of objectivity: the scientific method. Dust off, remember fifth grade, sixth grade, when they started telling you, oh yeah, all those things you had to do to comply with the scientific method: repeat your experiments, vary the conditions, right? Blind various aspects of the researchers, and so I mean, I'm not going to go through all, but what's the point of all that rigmarole?
Tara Smith: Why you have to go through all those steps. What does that method, the scientific method, what is it after? The same thing I'm talking about, right? Whatever the object of study of scrutiny that the given scientists or researchers are investigating, right? They want to get it right. They want to accurately understand the thing in question, so my suggestion is that in pattern, that's the essence of objective thinking in any sphere, even when we're not studying a physical object, a material property or something like that. We might be studying a psychological, an intellectual, social phenomenon, something emotional. I mean we might be trying to understand human intelligence. Okay? You can't put it under a microscope in the same when you can certain other things, but we might be trying to understand paranoia or sibling rivalry or grief. Whatever it might be, my thought is in all these cases, when we proceed objectively, it's because there's something we want to get right. We want to identify accurately. Okay. Objectivity again is a means thens to an end. It's the method of using your mind that best positions you to... I keep using these terms, get reality right and get the facts right.
Tara Smith: Alright. In the book, I do go into this in more excruciating detail. Also trying to detach a proper conception of objectivity from a lot of misconceptions that are very prevalent, that are sort of partial truths but misleading in other ways, but one thing I guess I would stress is simply this, I try to give a realistic account of objectivity. It's acquired a certain mystique in a lot of people's minds, it's very intimidating. At the same time we want objectivity, we also frequently claim that nobody can be objective. I mean, if we don't understand what it is, of course nobody's going to be objective and if we really think nobody can be objective, then we can't complain about the courts not being objective. But again, in terms of trying to give a realistic account, it's important to realize that object being objective doesn't guarantee the right answers.
Tara Smith: That seems like a gyp. It seems like a rip off. It seems like, dammit, if you go through all the hassle, like that scientific method in whatever realm law would have, you know, if you go through all that, shouldn't you be guaranteed the right answers? But it's not that hard to see that you could. I mean, think about a jury, for instance, a really responsible, conscientious, every last member of that jury trying to be scrupulously logical, evidence riveted and so on. At every step. It's quite possible that that jury, through no fault of its own, will reach a verdict that turns out to be inaccurate because certain other evidence came to light only weeks later and they had no reason to suspect that that was even still out there or would make a difference. Okay. That's possible. So we have to understand that objectivity does not mean infallibility, but it is the only means by which you can go whereof you speak.
Tara Smith: Okay. Little bit of objectivity. Let me move on. To speak of what I mean by objectivity in a legal system. Well, a legal system is a rule system specifically referring to the set of rules governing everyone in society. Rules that are enforced, literally force by force by coercion, right? That's the nature of this set of rules as opposed to the rules of the University of Chicago or the rules of, uh, you know, some other private organization.
Tara Smith: It's fun... So again, government rules, legal rules, yet they're coerced they're enforced. That's fine for certain purposes, but only for those purposes. Such a coercive system is justified in order to serve a specific function: the protection of individual rights. And that function is key, that function guides the proper exercise of that power that helps us figure out what an objective legal system is going to require. So in the book I explain objectivity in a legal system as essentially turning on three pivots, and I've put these, I think on the bottom of your handout. Basically objectivity in a legal system turns on what the system does, what its rules are, what the contents, the substance of its do's and don'ts, you know, you may not do this, you may do this. So objectivity turns on both what the content of the rules of the legal system, the how, how does it enforce its rules, how does it figure out what its rules will be, and how does it appoint or elect its rule makers and its rule enforcers.
Tara Smith: And so there's a whole bunch of stuff concerning the administration, the mechanical carrying out of your rules once you've got rules right, that's got to be done in a certain way for the system to be objective. And then thirdly, but most fundamentally, objectivity turns on why the system does what it does. Meaning more specifically, what is the authority by which it acts, and I say that's the most fundamental because notice you can't know what the rules should be in a legal rule system until you know why they should be right. Why are we? Why do we want to have any rules in the first place? You have to know that, the legal system's function or mission, to then determine its proper operation, what is objectivity in the system.
Tara Smith: You may well be familiar with the principle from other realms: form follows functions. Even this morning, I mean there's Frank Lloyd Wright stuff around here, so you all ought to be familiar with form follows function, right? Stuff that wasn't a very... buildings, beautiful construction... Anyway form follows function. That idea is helpful here too, I think. The substance of the legal system's rules must be shaped to serve its mission and the execution of its powers. All that apparatus of law-making, punishment, crime prevention, et cetera, all of that too must be shaped to realize the benefit of those rules. Because even the best made rules, if you've got a set of rules as perfect in content, you got it all right, lawmakers, I mean we can dream, right? They got it all right when they made these rules, if you mess up the actual implementation of those rules, they're not gonna do you any good? Right? So you need objectivity both in the what and the how and that's all got to be informed by what's the what for here, the why? So again, I go into that in much more depth, but basic three parts picture of objectivity in the legal system.
Tara Smith: When these three facets working in concert, then you've got a system that's fulfilling its reason for being. That's, that's actually doing the work for which it has the power that it has. A little bigger pause here and then I'll get into the main meat of things.
Tara Smith: So what would proper judicial review look like under this broader scheme? Well, here I think to answer we have to employ as our compass the function of judicial review, which is to ensure that it's the law that governs, to understand correctly what the law requires and forbids. Essentially, objectivity in judicial review means two things: unswerving focus on law. That's the object here. To go back to the what I was talking about objectivity earlier, you want to get the object right, you want to get reality right. That's the central object or reality, the law. That's what the courts are supposed to enforce the law, so they want to get the law right unswerving focus on the law, and secondly it requires appreciation of the contextual character of what laws mean. So I'm gonna elaborate now on each of those, but I want to start with the second. Okay. On the contextual character of meaning. A person must understand the mission and the authority of a legal system to properly construe any of it's discrete elements. In a proper legal system, all of its parts, powers, specific rules and policies are reflections of the central animating purpose.
Tara Smith: Their legitimacy depends on that. Correspondingly, there legitimate meaning depends on that. A legal system's authority determines what its particular provisions could possibly mean in order to be consistent with that authority, as well as what they could not mean. Since interpretation would exceed the government's authority, allowing it a power that it doesn't rightfully possess.
Tara Smith: Contextual interpretation must respect the boundaries of government power. We must understand, in other words, you must understand the overarching function of law and the authority of law in order to derivatively understand the proper meaning of any single component. An example or two, I think will help. The right to free speech. It couldn't protect fraudulently misrepresentative speech about some product that I'm selling you, for instance, because that would violate other of your rights, right? So yeah, the right to free speech has to be understood in context, the context of a larger understanding of the nature of rights and rights essential to what the legal system, the Constitution is trying to protect. The right to the free exercise of religion couldn't protect human sacrifice in the name of religion, right, or beat the adulterers in the name of, uh, the, uh, the adulterers in the name of it because that would violate others' rights. Again, it's just simple illustrations of this idea that to understand some of the particulars, you have to be informed by the larger context. And notice, in many arenas, again, leaving aside the law for a moment, in many arenas, people readily distinguish between the spirit of the law and the letter of the law.
Tara Smith: Recognizing that context affects meaning. That the background and purpose of a rule illuminate its proper application. So my contention is that the letter of the law cannot be understood without understanding its spirit. Understanding the purpose and principles of the larger legal system.
Tara Smith: The law is philosophical. One of the best things Ronald Dworkin ever said was he had this line that I always liked. I want to it. Lawyers are always philosophers. That's a compliment, there's hope for you guys yet. But, my point is, the law is philosophical. Our Constitution reflects a definite theory of government. I mean you might agree with that theory might disagree with that government, but it reflects a definite theory of government in creating the powers that it does end in those that it does not create and in a way that it structures power. All the safeguards that it builds in, it is taking a stand on what it sees as the proper relationship between government and governed. Correspondingly, courts must make use of that when considering the meaning of disputed terms, and that's not saying court justices should impose or project their own philosophical views, but it means they should draw on the philosophical views that are implicit in the given law. This entails that objectivity on their part requires judgment, which many people resist. Critics of activist courts often imply that judicial review should be a no brainer. But the answer is self evident. It can't be.
Tara Smith: To understand the correct application of abstract concepts to particular circumstances is an intellectual process and often a very difficult one. Consider. Did the police have probable cause for that stop that search of that guy? Is it freedom of the press for her to withhold that information from the government investigation? Is that refusal to cater those two women's wedding, uh, an expression of the, is that the free exercise of religion on their part, the refusers' right or is it a violation of their rights, the married couple, under equal protection law? Now my point here, I'm not trying to answer any of those questions, I'm simply observing that to answer them, we have to think, we have to reason. Judicial review is not a no brainer. It's not paint by number plate because you don't play... It's not Simon Says. Okay?
Tara Smith: And we can't convert this fallible difficult fallible process into a foolproof method that's going to guarantee the right answers. So while it's important to insist that courts honor the law what was written and enacted, but it's really important to appreciate what can't be written. Meaning this is a subtle but I think a crucial point, meaning can be indicated by words, but it's not contained in words. It's not reduceable to words. Put it this way.
Tara Smith: Rules can be written, rules can be written. The understanding of those rules can't be, and that's why we need judges, human beings, to think, to weigh logically, to exercise objective judgment. Meaning can't be outsourced to physical symbols as the textualists thing. It is an intellectual phenomenon. So it's a mistake, as a lot of critics of the activist courts do, it's a mistake to condemn judges for using judgment in order to discern meaning. Whether or not they deserve criticism depends on how they use judgment, whether or not they judge objectively or not. Okay? I say more, I say more, but you're tired of hearing me say that so I wouldn't say more. Now, let me move on to what I called the first of the two main guide posts for objectivity in judicial review.
Tara Smith: Unswerving focus on the law. That's the object. That's the ball you want to keep your eye on to be objective. And that may sound really obvious like, okay, judges should focus on the law. Gee and all they gave you was this crummy lunch. And yet you'd be surprised. It's much easier said than done. Keep your eye on the law, right? And much easier said than supported by people who want a lot of things from the government and who despite lip service to the rule of law, lobby for all sorts of ancillary things that are at odds with what's actually constitutionally authorized.
Tara Smith: An objective court must ruthlessly deflect all extraneous considerations that pollute discussions of how they should rule. It's got to avoid a lot of lures away from the law. Now, what kinds of things do I have in mind? Well, the the bulk and the meatiest of these I'm not going to go into now. I talk about them at length in a chapter that critiques five other views of judicial, of proper judicial methodology, judicial review and there I really going to depth into what I think a lot of misleading distractions. But here I thought I would talk a little bit about some more accessible traps or red herrings and I've called them. I forget what I called them on the handout, but I've actually given you a list and I'll say more about that list. Yeah, distractions from the law.
Tara Smith: My caution before I even go into any of these is simply this: I do not mean that any reference to the things on that list is always unjustified. Okay? Is always a sign that a judge's report is not being objective. Okay? But some of the things that I'll go through, foreign law, deference and so on, these considerations are dominantly invoked these days in ways that would actually pull cords from focusing on the actual law. So, you again, I'm not saying they should always be condemned or that they're never used in perfectly legitimate ways. Dominantly they're not. And that's why I want to call them to your attention as ways in which courts get their eyes off the ball. Okay. How are we doing time wise?
Host: Probably like five or 10 more minutes.
Tara Smith: So I won't be more than 10 more minutes and I'll try to be less.
Tara Smith: Let's try to get through a few of these. Courts have to dismiss calls that they should follow the lead of foreign law. You know, the French are so much more enlightened when it comes to capital punishment or the Germans are so much better than us on Internet privacy or something. Maybe they are, not an issue for the court though. Right? Well now fairly obviously I think, good reasoning about our laws should be welcomed from any quarter or whatever accent it might have. Right? Wherever translation. Sure, good reasoning about law is always to be welcomed, but whatever the practices that prevail in foreign lands, they're not the law of our land, so foreign law per se is irrelevant. Now we can get them. I want to talk a little bit more about that to clarify. Similarly, an objective court must resist calls for deference to the will of the people or to one of the other branches.
Tara Smith: Now here again, this is a little bit tricky. Certainly it's fine. It's fine and good for courts to defer to experts in a certain respect when they need more information so that they can understand, let's say the encryption technology in order to give us an intelligent ruling on some case, should they face that kind of case. There are areas where courts need the information, the knowledge that they don't have, right, so it makes perfect sense to. And even here, it's not strictly deferring, but it's know your ignorance. No, what you need to learn and learn that. Right? But again, where I think we often go wrong is in, oh, well we should defer this to what the people want. This is what the people are ready for, or the court, oh, we should defer to one of the other branches. No, the court retains the responsibility to judge the constitutionality of any government policy and deference to popular opinion.
Tara Smith: The White House is a shirking of its duty to uphold the law. Whatever its relationship to others preferences might be right. Others don't like the law, they should change it. Another red herring. An objective court has to be wary of calls for balance, somewhat nebulous term that carries the aura of moderate, sober, mature balanced, balanced sounds so sober. But it's often still employed to subvert the primacy of law. I think you always went, when people start talking about balance, you always need to ask a few questions such as balance of exactly what, what is it that's going to be balanced? Are the things that we're going to balance or they even commensurable or are we just kind of tossing the salad and see what ends up on seeing what ends up on top. Balance, for what end are we balancing those things, but most importantly, most importantly, by what standard are we to balance the things in question. You know, the liberty interests of these people and the equality interests of these people, that's just an instance okay. By what standard and what does what would be balanced have to do with the actual law because that's what the court is supposed to be paying attention to. The bottom line here
Tara Smith: the court should never balance law with other things that might seem desirable but aren't what's legally authorized. Because to do that is to subordinate the law to make the law less sovereign, f it's now got to compete with some other things and oh well, you know, win some, lose some. Perhaps even more entrenched is the idea that courts should go by precedent. There's a lot of good stuff in precedent and there's reason, other things being equal, other things being equal, to go by precedent, but other things aren't always equal. An objective review demands that courts discard mistaken precedents, illegal interpretation as if they were the law. They're not. And judges swear to hold the Constitution, not what others have said about it. Right. If a previous court misunderstood the Constitution, it doesn't change the Constitution, it doesn't change the law.
Tara Smith: Right. Let me, um, yeah, maybe I'll skip it. The last few so that we still have a fair amount of time. Yeah, I'll skip a few more and yeah, and let me just. Okay. Just say something like this to end. I've always been frustrated by the fact that my theory doesn't culminate in a snappy, memorable slogan or easy to follow formula. Textualists, the public understanding and review ... you name it and everybody else has it all over me when it comes to PR or branding or something like that.
Tara Smith: But I'm right. Well we don't know whether that's an objective conclusion or another, but I really think we often fail to appreciate what hard work judicial review is. I mean, it is. You're taking the kinds of abstractions that are in the Constitution, which is deliberately appropriately written in broad terms to govern all sorts of particular cases, right? And they're using high level abstractions and the kinds of cases that actually get to the higher courts are ones that are there because they're kind of complicated and there seem to be some good reasons for thinking this is the truth about the law or that. It's hard work, it's not the kind of thing that can be dumbed down into a mechanical formula. But I do think the deeper we can make our appreciate ... we can make our understanding of what objectivity really does demand and trying to ferret out what are some of its essentials and remember, I'm just give you a little peek at some of that today, the better we can assess how objective our courts are being and what kinds of people do we need on the courts and try to exert more constructive pressure in that direction. So let me leave it at that for now so that we can have some commentary and questions. Thank you.
Lakier: Alright, so Professor Smith's account on objective practice of judicial review, um, I think matches up well with the practice of I would say 95 to 98 percent, I would imagine, of existing judges in my experience who genuinely when they come to a case not trying to figure out what the answer is, try their best to be objective. So there's a way in which her account resonates quite well with what, in my experience, judges understanding what it is that they're supposed to be doing as judges is. And this goes so far as dealing with issues where they think that the answer should come out a certain way and ruling in a different way because that is what the law requires. So the idea that judges have to constrain themselves by logically working through what it is that the law requires, I think neither a novel understanding of what the law requires.
Lakier: It is the everyday practice of most, although for sure not every judge out there, but I also think it doesn't solve the problems that Professor Smith invoked at the beginning of the talk about the relationship between law and politics or this concern about activist judges or just this worry about the inherent subjectivity of what is ultimately, you know, unrelated at least at the federal system, an unelected branch of our government. And it doesn't solve the problems of sort of why the relationship between law and politics or the worry about judicial bias probably for the same reason that the scientific method doesn't mean that we're always right as Professor Smith noted which is that there are profound and deep limits of human commission. Okay, so we can do our best to try and get an accurate picture of the world as we know it and we can be wrong and one of the reasons that we can be wrong.
Lakier: There are many reasons we can do wrong. One is just a limited set of data, right? There's a major example, but another maybe because we see the world who certain blinders and that is human commission. Our understanding of the world is created through a set of everyday social practice. And so when you come to a new situation, we bring with it our understanding to my previous situation and you see the room, I see a new chair and I understand the the chair, because I've seen previous chairs, right? So my, my history creates my understanding of the world that I see, and it is inevitable that judges trying very hard to be objective, will still understand what the law requires in different ways. This isn't a question of bad faith. I think actually the problem of bad faith with judges, judges don't think what they're supposed to do is interpret the law.
Lakier: It's a problem and it's a difficult problem. And it raises interesting philosophical questions, right? In certain circumstances, should judges ever do what they think justice requires rather than what the law requires. A proponent of the rule of law would say no. There are other theorists who would say yes. But at the same time, that's still a very limited set of situations that we are going to face, right? So most judges, most of the time think that what they're doing is trying their best to be objective. But most judges, including Justice Alito, I think would recognize that much of the time or at least some of the time, there is no simple answer and there is no single answer that very reasonable persons can disagree about the outcome to a case or about what the law requires. And it's not at all apparent who was right, who is wrong.
Lakier: Logic supports both views, and one might think that what is deciding the different positions is not just sort of happenstance or chance, but biases, the judge's conceptions of what in a hierarchy of values has most importance, things like that. And so even judges trying very hard to be objective run into all the problems of law and politics that, um, that Professor Smith talked about. And in part, I think, what Professor Simon was saying the quote, we should just think of law as politics. Um, I wonder if there's a way to spin that in a way that isn't so terrible, isn;t so dismissive of the requirement of objectivity in level. Because if we think about what politics is ultimately and again, leaving aside bad day, faith, and self interested legislators who just want to make a lot of money for themselves, but really genuinely good hearted legislators.
Lakier: What they're trying to do is create the rules that govern society in the best way. They are also trying to, in a sense, get the right answer to a difficult question. And yet there can be very many and competing different answers and judges are faced with at some level the same problem. They're trying to get the right answer and yet there can be very many answers. And, um, so I guess the question I went off to Professor Smith is what does she think judges should do in cases of indeterminacy? And just one other thing, just on the handout, thinking about the lures, right? Most of these words I think I'm not actually very dangerous lures for judges. I don't think I, I cannot think of any judge who would say, well that's foreign and so we should just bring it in here. I think most of the time what judges do when they look at foreign law is think about the logic, the reasoning, the ways in which it illuminates concerns, values, problems that we should think about here. That's not a of lure. Deference to popular will. Rarely. I just don't think that that's a serious problem. The reason why the President plays such a crucial role in our legal system and getting rid of testament or lessening its value would be a earthshaking profound revolution in how we think about law is because of this recognition that
Lakier: judges are fallible and get things wrong and the only way in the only way that we can ensure legal system in which there is some degree of certainty, finality, and predictability is to establish a hierarchical system in which judges are required to follow precedent even when they think it's wrong because they might be wrong. Um, and so, um, I guess my second question is what about the regular, how do you deal with that problem with fallibility to predict the President.
Tara Smith: I'll say a little bit but not too much so that we still have time for questions. So it's hard to know which, what to say, how much. I completely agree about the bad faith thing and I just hope that that's clear. That is. Yeah, I mean I think most judges are trying really hard to be objective and they still have differences obviously and that just means that at least on their current understandings of what it is to be objective, it doesn't always give you the same answer or simple for sure. But yeah, bad faith is boring in a way because it doesn't speak to the theory. I mean that's about a given individual. Does he exercise bad faith or not? It doesn't help us understand how should anybody have good faith? How should they proceed? Okay. So a few kind of scattershot thoughts on some different aspects of what Professor Lakier brought up. I mean about some of these lures
Tara Smith: Oh, I mean I definitely agree on the foreign law thing that sometimes foreign law is brought up in perfectly appropriate ways. I will say I have just read Breyer's new book on foreign law and it was actually much better than I expected to get given some of his previous books. No, he says a lot of good, sensible things in there about foreign law, none of which vindicate the view that is sometimes advocated that we should do a certain thing because, well that's, you know, the way some other people do, even though that may not be a very widespread view among the judiciary. Okay. I will say though, and this one I didn't get to talk about it in the body of my remarks as much, it's one of the things I cut out at the end, about something like deference to popular will. No I don't think you'll find judges coming out and saying we should just do whatever the people.
Tara Smith: But here's something we hear all the time and usually this view has been attributed to people like Ruth Bader Ginsburg. God bless RBG or whatever. Right? Um, the people aren't ready for that. I mean in whatever language we talk, and this has come up a lot in regard to abortion, in regard to certain immigration law, in regard to gay marriage. A lot of concern with what the people are ready for, how mainstream this is or how divisive, right? Then the courts, Anthony Kennedy and others being very sensitive to what we all think, right? To the extent that. I mean that's the kind of thing I'm saying that's a distraction from what the law is, and that's what they're supposed to be keeping their eye. Okay. Um, one or two more quick things. Interesting idea about, you know, maybe can we put a little more positive interpretation on what Professor Simon, the man I quoted as saying when he talks about, oh, it's a farce and we should get rid of the difference because look, what judges are facing hard questions, they're trying to get right answers and that's difficult and intelligent, well intentioned people will disagree.
Tara Smith: That's all true, but I think what's really important here, part of what in my book tries to go at is judges are trying to get the right answers, but what's the kind of right answer, right about what? That it is appropriate for the judiciary to be concerned with. Right? If I'm in a philosophy seminar, there's, well, I'm trying to figure out what a legal system should be. That's not what the court is supposed to be doing. The voters can do that. They can do that, the legislators can do that if they actually want to go so far as to amend the Constitution and so on, but the court has law that has been given and their role is not to figure out what's right philosophically or theoretically or our Constitution will be so much better if it got rid of this provision and this one more explicitly all interesting important.
Tara Smith: Again, I think extremely important, as a philosopher, kinds of issues, not the issues for judicial review to be concerned with. So even the question of what it is they need to be trying to be right about is really crucial. That's what I'm saying keep your eye on the law, but in order to figure out how to do that well or what are the right answers to those even when they're just asking the right questions. I think that's where we do need to understand objectivity better than we have and there was more to say, but I shouldn't. I should probably let you guys ask questions, so let me leave it at that for some questions.
Question One: In the 1930s, Professor Llewelyn from our own Law School attacked all the formalist views that you seem to hold that there is one right question in law and he gives two...
Tara Smith: That there is one right question in law did you say?
Question One: So you, I assume that you have the view that if you ask what the law is in a particular issue, um, and if you focus on just that question without any extra consideration you will get to the one answer. Right? Is that you would call objective?
Tara Smith: You can tell from my, my head shake here often that often I think that would be the case. I'm not sure. This maybe also addresses the indeterminacy question. Something else. I do think there are cases where fully respecting the law, what the law is, leads over in some options. Um, two or three alternative ways a court could go that would be perfectly compatible with what law is. So I don't think there is absolutely always one and only one logically correct answer. There might, here not my ignorance of law is going to inhibit me a little bit, but I would think for instance, in areas that are fairly new to a legal system such as with new technologies and so on, um, there are so maybe concerns intellectual property in certain respects, new technologies in certain respects, wherever perhaps there are two or more viable ways of a legal system proceeding that could do justice to the existing broader laws, but there are good practical reasons to go one route, to settle on a way we're gonna go legally and stick with that, but it might be no if the two or more might be equally compatible with the broader law. Sorry to complicate things.
Question One: Because writing in law for example, you have different, he listed different canons of interpretation which all perfectly fit with your goal of being objective. They're just focused on what the law is and also interpreting the precedence. You have a narrow reading of the holding and the brought freedom into holding without any other factors. Fair enough. You acknowledged it and maybe a different ways of logical reading that leads to different questions on what is the law. The second question I think is how do we distinguish your view with a textual post-structuralist, which I think is pretty fair label of your view, which is that you focus on the text and then you put the text in the context and by context I assume you mean that the structure of, for example, the Constitution, but not the historical context, not in the cultural context and everything else. So I believe that's what we call structuralist and textualist in the legal realm. So how would you distinguish any distinction?
Tara Smith: Interesting question. Structuralism isn't a term that I've, that I've used. And that tell you the truth. I think it's one of those terms. It's often used in somewhat different ways. So it's not one one, I would critique some alternative views, that's not one I take up because a lot of these different views of how judicial review should be conducted go by about each of them goes back about five minutes and so on. But just to clarify, what is the meat of my view, right? That's what you're really interested in here. So two things. Of textualism, I'm very critical of textualism as such as advocated for instance by Scalia and some other people largely because it leaves out of context, but I do think the context isn't just. And this gets to the second part of your question, the history of the Constitution. Um, and this was part of what I meant by saying and stressing the law is philosophical, like it or not, our legal system is philosophical.
Tara Smith: So in that sense, I think to understand the law, you need to understand that its philosophical underpinnings and principles, not the philosophical context as well. And that I think is fine. I think again, this gets in some ways some of the aspects that the commentator was talking about of differences or what makes judicial review difficult. And what makes even well intentioned, smart judges often disagree about it, is there's a disagreement in understanding what those informing principles are of the context. But in that sense I think we need to be more, we need to confront or face up to the fact that there are values implicit in this kind of constitutional system as opposed to some other sorts of legal systems and that if we don't, you know, if the people don't like those or we want to change, some of them we should, but the ones that are there, we need to work on trying to understand what they are and how those play out in application to actual cases. So I don't. So I would resist for sure the idea that this is textualism plus structuralism in the way you were describing structuralism and it's even so was the textualism plus something else. I think. I think the language of textualism is misleading. It's, I mean we do need, I think traditional review that's philosophical, that's holistic. You might say, again, that tries to understand review and the nature of law and the larger context of a objective legal system overall. So that's some sense of what I'm talking about.
Question Two: Um, so when you talk about meaning or context, do you mean actual meaning or actual content or sort of like a more normative what it should mean, what the philosophical context should mean, and either way, how do you measure that? Because I've always seen textualism I sort of like a tool for measurement as an original public meeting as well. It's obviously a rough proxy and sometimes people were wrong, but it seems like a tool for measuring the meaning as opposed to like a dance or a song.
Tara Smith: That's good. That's a really interesting question and yeah, and I think what often draws people to different versions of originalism textualism with the intent originalists or I think the most sophisticated by far the public understanding of originalists that I should say people from I have learned a great deal. The public understanding originalists still. I think what attracts a lot of people to them is, on the measurement kind of question, what we can know damn it. This is how they use the word at that time. This is what the public understanding was or something. Right, and that's great. It gives you a certain. I mean it's very reassuring, isn't it? But I don't think it reassures us or tells us the thing we need to know, which is so, excuse me while I sounded like a philosopher a few minutes, what the words mean, which is not the same thing as what they thought the words mean in 1789 or 1868 or whatever year we're talking about.
Tara Smith: Right. So my thought is, too get back to another way you were putting it, yes normative in the sense that person means something and it means something more other than simply what people in 1868 thought it meant. And it means something other than are not necessarily just the same as what you arrived in 2016 might think it means. And the fact that in 1868 they didn't think person included, if you'll excuse me, I'm black skinned lookalikes or something like that. Right. They weren't thinking that; they weren't thinking whites and blacks are going to go to public school together. They weren't thinking they can get married. Right. But what I'm saying is, but if, if we come to think that a previous understanding and original understanding of some concept: tax, taking, commerce, person, whatever it might be, equal protection. If we come to think that the original understanding was a misunderstanding, we need to correct the understanding as best we can do and we're fallible to and we might, you know, it's not just because we have a different view that we're, that doesn't justify us.
Tara Smith: Right. But we need to, I'll get to in a minute, okay, we need to try to make an objective case for why this is what a person encompasses or is. And so. Right. And one of the reasons we need to do that is because laws don't tell people, you know, this is against the law and this is permitted according, you know, circa the 1868 understanding of such and such. We were talking about a persons here or we're talking about commerce here or we're talking, I mean the laws would be engaged in false advertising if for instance, what they really represented was the such and such date understanding of that. Right? So, I mean, one of the criticisms I make of originalists is that they end up revering the original meaners rather than the objective meaning of the terms that they wrote. But I mean, okay, you wanted to...
Question Three: As you're answering that question it seemed to me that were succumbing to one of your own...
Tara Smith: Uh oh, that would not be good.
Question Three: So you think judges should not defer to moral or political ideals. Oh, so, so my question I guess would be all right, so there is a, there are persons, these are things that exist in reality, whether it be acknowledged or not, like um, and then there is this document called the Constitution composed of sentences in the English language that we'll use to support person. Is that overlapping exactly what the meaning of the actual real like Platonic person maybe or maybe not. But if I understand your claim correctly, judges should not worry about that on the bench. They should just worry about here is the law or legal sense of person. You know, maybe it's kind of immoral that black people aren't people. Um, but that's not my concern. I just applied the law. What, what does it mean like the law person versus person person? Am I making any sense here?
Tara Smith: No, no, no. You are definitely making sense. I think you are definitely making some sense. I don't know if I can make sense quickly in answer, but I'll share a few things and this will be frustrating. The first thing I'll say is this is where it all comes down to really have to try to understand the objective meaning of language. So, in a sentence, my book is a call for look, we need even to be philosophical and to some extent in thinking about this issue of what do words mean, whether we're talking about legal words like persons or you know terms that are used in the law, or cars or Cabernet or whatever it is. And then I may not get back to that, but you picked up on one of the lures. Again, it was one that I didn't actually get around to talking about in my trimming a little bit at the end. So yeah.
Tara Smith: How did I put it on the handout, a lore, a distraction away is moral or political ideals. Now, what I would've said to clarify what I mean is certain ideals such as justice or fairness or equality or even liberty as such, as such, that's not the proper concern of a court of Justice in judicial review. As reflected in the law that he's given it or the Constitution that he used to interpret, yes. And that's again when I very quickly at one point in the body of the remarks, um, was referring to when I said something like, if the, if the law is philosophical, a judge has to objectively try to understand the way that philosophy plays out in interpreting free speech or freedom of religion or whatever it is, which is not to project his own into it. So there, what I'm concerned with is the kind of view that some living constitutionalists or they sometimes go by the name of aspirationalists, um, what they have in mind when they think, look, judicial review, judges should always be making the legal system better. Don't we want a better system? Of course you want a better system. But it's not the job of judges to give us that or to based on their own best sincere, even wise views about what justice demands or quality or whatever. That's not their job. Their job is to go by the law as philosophically rich or poor as it is. So I would have been had I elaborated on that one, I would have tried to explain the way in which I think certain philosophical ideas are. But thanks for everything!
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