Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
'Rule-of-law' judge? Don't be fooled. Here's what that really means
https://www.freep.com/story/opinion/contributors/2024/05/13/michigan-supreme-court-rule-of-law-candidates-elections/73474218007/(A Detroit Free Press opinion piece by Joseph Kimble, a Distinguished Professor Emeritus at Cooley Law School (Lansing MI). Some portions of this commentary appeared previously in Michigan Lawyers Weekly.)
The author addresses the question of What is a Rule-of-law judge?
For one thing, its hopelessly simplistic. Rarely at least in appellate cases does the law as written lead to a single, unmistakable result or conclusion. The law is full of vague terms whose application to facts is typically arguable: "due process," "probable cause," "reasonable doubt," "good cause" and countless others.
(And he goes on to point out how common words can be interpreted very differently by those with different viewpoints.)
A second objection to the rule-of-law mantra in my (opinion piece author) view, at least is that it signals a so-called textualist approach to judging. Textualists profess to look for a laws ordinary meaning by scrutinizing its words, syntax, and structure. This often involves bringing to bear a set of linguistic canons of construction that are highly malleable and sometimes conflicting. And it very often involves rummaging through a dictionarys superstore of possible meanings. Textualist judges tend to have less use for legislative history, the laws broader purpose and context, sensible policy, judicial intuition and a decisions practical consequences.
(In practice textualism has become the brand name for ideological conservative judging. The author published in 2017 a study of over 90 Michigan cases, decided in 2000 or later, in which the courts overruled earlier decisions.)
https://drive.google.com/file/d/1iUrjq0OgeL0yuLNuOs_-x0tgaK5FR7aJ/view
(The author of the opinion piece) coded the cases according to their ideological tilt, and in 96.3% of cases, the tilt was conservative: they made it harder for plaintiffs to sue and recover or get relief in civil cases (think so-called tort reform), and made it easier in some way for the prosecution in criminal cases (think tough on crime).
(And the author points out that similar studies have found similar results from the so-called textualist justices of SCOTUS.)
All judges not just textualists are influenced by their backgrounds and worldviews. But textualists claim to operate on a higher plane. They are more neutral, objective, restrained. They show the proper deference to the Legislature. But in fact, their theory of interpretation is just as pliable as any other. And they seem unwilling to own up to the skewed record it has produced, especially in high-profile cases, cases that shape the law.
So now you know.
InfoView thread info, including edit history
TrashPut this thread in your Trash Can (My DU » Trash Can)
BookmarkAdd this thread to your Bookmarks (My DU » Bookmarks)
1 replies, 3622 views
ShareGet links to this post and/or share on social media
AlertAlert this post for a rule violation
PowersThere are no powers you can use on this post
EditCannot edit other people's posts
ReplyReply to this post
EditCannot edit other people's posts
Rec (2)
ReplyReply to this post
1 replies
= new reply since forum marked as read
Highlight:
NoneDon't highlight anything
5 newestHighlight 5 most recent replies
'Rule-of-law' judge? Don't be fooled. Here's what that really means (Original Post)
WestMichRad
May 13
OP
TexasDem69
(2,025 posts)1. I'm not sure what I "know" after reading this opinion piece
Is the point that judges are influenced by their background and world views? That seems self-evident.