Friday, March 7, 2014
What Is the Disposition of the Good Judge?
Tom's post below raises some important issues, but as Kevin says, our paper does not answer in a complete way the question of what constitutes the ideal disposition of the judge. What it does is to direct some attention to the question itself and to reconceptualize the intellectual projects of judges who ostensibly are said to be writing (and at times themselves purport to be writing) about constitutional theory as adverbial projects--projects about the quality of good judging. One might believe that in order to think well about judging, one needs to think first about the qualities, habits of mind, and dispositions of the good judge. But one of the themes of our paper is that interpretive constitutional theory has come so much to dominate scholarly inquiry in constitutional law that it is difficult even to understand other sorts of constitutional projects for what they are.
One of the reasons for this blind spot is methodological. You cannot tell very much at all about the habits of mind of the good judge by asking that judge to reduce to a writing his theory of constitutional interpretation. You won't get the information you are looking for (though you will get the chance to score some easy points and look clever by punching holes in his theory). Instead, you need to examine whom the judge admires, and why, and which "school" the judge aspires to join and be thought within, and which other judges are dispositional compatriots--all projects within the domain of intellectual history. But you also have to compare what the judge does in constitutional adjudication against what he says he does extrajudicially. That is, you need to be a good and careful doctrinalist, not in order to trap anybody but so that you can see the many ways in which constitutional law in practice complicates constitutional theory.
An additional advantage of making the move from theory to disposition is that it permits the scholar to criticize judicial pragmatism and restraint on their own terms--as dispositions rather than as theories of constitutional interpretation--and therefore to engage more directly and more truly with the sorts of projects in constitutional law that interest judges. Part III of our paper does just that. In its final section, we look to the example of Judge Henry Friendly, who was neither a pragmatic judge (here we respectfully disagree with Judge Posner) nor a restrained judge. Indeed, Judge Friendly always resisted such labels and never was particularly interested in what was then the dernier cri of Dworkinian moralism. But what, exactly, did Friendly stand for? The model of lawyerly craft and argument that he represented does little to enrich legal theory, and this has led some academic commenters to wonder whether Friendly will be forgotten by future generations. Perhaps so. But that may say more about the peculiar reputational preoccupations of the legal academy than about the much more interesting question of what dispositions make for a good judge. Lots of work remains to be done in thinking through that question.