There’s No Such Thing as “Judicial Philosophy.”
Can we just get over all the ridiculous pontificating about how judges have “judicial philosophies” like “originalism” or “the Constitution as a living document,” that they rely on these supposedly consistent and coherent standards to deliver verdicts and opinions determined by “established law and precedent,” and that this process results in “impartial justice?” If you believe this, I have a bridge to sell you.
Judges are politicians, and like other politicians, they enter their profession with ends in mind. These ends may be “liberal” or “conservative.” They may be, but almost never are, radical and transformative. Most often they are reactionary, anti-democratic and pro-corporate. Sometimes they serve a truly sinister agenda, such as establishing autocratic or theocratic rule. The law is not a standard or institution in itself to most of them, but merely a means to their end — just as political office is not a lofty opportunity for public service, but a means to an end for most of their fellow politicians.
And what is law? Law is the set of rules that is imposed by whoever has the power to impose them on others. In a truly democratic society, laws would reflect the will of the people. But we don’t live in a democratic society. We live in an oligarchy and the oligarchs get to decide what the rules will be.
Think of the Law as a deck of cards heavily stacked in favor of the rich and powerful and against the rest of us. Politicians do the will of their ruling class and corporate masters, writing and passing laws that serve their interests at our expense by further stacking the deck in their favor. When laws are challenged and interpreted, judges know the outcome they seek and rifle through that stacked deck to draw out the cards that give cover and the appearance of a legitimate rationale to their predetermined outcomes.
Why should this be a surprise? Judges, for the most part, are lawyers. It is their JOB to win cases for their clients. That is what they are trained to do. And that, my friends is why elite universities invest in law schools — to produce lawyers and judges who for the most part will serve the interests of their patrons. That is why Catholic universities support law schools — to turn out lawyers who will fight to impose their sectarian ideology on society. That is why fundamentalist colleges and universities invest in law schools — to build their bench of right wing advocates and pack the courts with judges who will advance their christofascist agenda. That is why very wealthy individuals donate to law schools and endow chairs (same as they do in schools of economics, history, etc.) — to achieve their self-serving ends. And it is also why the public does and should support legal education in public colleges and universities, which one hopes will attract and train students from more diverse backgrounds to fight back on behalf of workers and diverse, ordinary people.
Of course there are always going to be exceptions to these rules, products of elite or partisan schools who end up being champions of civil rights, products of liberal education who sell out…but if you want proof of the rule, just look at the preponderance of outcomes as corporate polluters run rampant over communities and the natural world, civil rights, LGBTQ rights and labor rights are eroded, women’s autonomy over our own bodies teeters on the brink and unlimited dark money flows into the coffers of corrupt politicians and parties. No “judicial philosophy” determined these outcomes. They were drawn from a stacked deck and arranged into plausible-sounding legal arguments by dirty politicians in robes.
The Supreme Court sits at the pinnacle of this mountain of corruption and deceit, passing themselves off as some sort of Vestal Virgins, above the fray of politics. Don’t fall for it. The Supreme Court is a bastion of elite power, straight from the ivy-covered cauldrons of Harvard and Yale, and now about to be seasoned with a poisoned dash of Notre Dame.
Every last one of them, including the sainted RBG, climbed to power through a corrupt system that overwhelmingly serves the ruling class. True, the liberals may also hold to a handful of pet democratic ideals, for example RBG’s vision of women as equal human beings. But that does not mean that they, too, don’t back into their outcomes by shuffling through the stacked deck. It’s just how the game is played. Ever wonder how Ginsburg could maintain a genuinely warm, personal connection with a vicious fiend like Antonin Scalia? They like to call it pretty names like “impartiality” and “judicial temperament,” but really, they just see themselves as above it all…above us, that is. On some level it’s just a game to them.
That is also what allowed Ginsburg to decide to stay on the court at an advanced age, with a fatal diagnosis, so enamored of being part of that lofty family that she was willing to play Russian roulette with five chambers loaded and the gun aimed at our collective heads just to stay in the game as long as possible.
While it is sad and ironic that the execrable ACB is about to occupy and pollute RBG’s seat, walking through every door RBG opened, slamming it shut and locking it behind her, it is not an anomaly. It’s a feature, not a bug.
