Tuesday, June 21, 2016
I look forward with some trepidation but with greater hope to reading Patrick's Catholic case against McLaw. Truth can be uncomfortable, but I must seek it out, like it or not. And because I happen to agree with much of what Justice Scalia has said about the law and judging, I am sure to be challenged by Patrick's paper.
One thought prompted by reading the abstract: Is there some version of Justice Scalia's comparison of hamburger making and judging that might be true when we focus on who is making which hamburgers and why? Suppose federal courts were like your local McDonald's. Would there be a Catholic way of judging analogous to a Catholic way of cooking hamburgers?
Hopefully this comes as a surprise to nobody, but the hamburger maker at your local McDonald's doesn't exist. That's because no hamburgers are made there. The chef cooks/heats up frozen hamburger patties processed at a hamburger plant. Is there a Catholic way of doing that? I doubt it, at least in any way that matters to how the hamburger tastes.
And if not, then maybe there is no Catholic way of deciding questions of federal law, at least insofar as judges themselves don't make lawburgers, but just prepare and serve up what was made at the national law plant.
I realize this is an implausible way, for many, of understanding the relationship between the judicial power and federal law. But I do know of at least one Supreme Court Justice who avowed a claim of this sort. Here's Chief Justice John Marshall in Osborn v. Bank of the United States:
Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.
To push our comparison (perhaps past the breaking point). Suppose the judge is the hamburger "maker" at your local McDonald's. His skill is never to be exercised for the purpose of making the best hamburger as he conceives it, but for the purpose of making the best hamburger as the McDonald's corporation (or whatever the controlling entity that decides the ideal hamburger) conceives it. Something may be lost by the subordination of his idea of the best hamburger to the corporation's. But if he's doing his job and the hamburger plant has done its job, then that hamburger should taste the same in San Francisco as in South Bend (assuming that's one of the qualities of the McDonald's hamburger dictated by corporate).
It might not be the best burger in town, but you know what you are getting. And that's not so unattractive, after all, when it comes to federal courts, at least if you subscribe to the idea "The Federal Courts as a Franchise."