I was going to write a long rant about lawyers’ obsessions with such whimsical notions as stare decisis and legalistic reasoning, in connection with the Padilla and Gitmo cases. Thankfully, Will Baude points out a book review by Richard Posner that—while dealing with the seemingly completely different issue of gay marriage—makes a basic point about the judicial construction of rights that seems to escape everyone else who’s ever attended law school:

It should be apparent by now what the problem with Gerstmann’s approach is. Though he is a political scientist as well as a lawyer, his approach to the question of homosexual marriage is legalistic. Find a precedent…, and analogize it to the present case, and use the analogy to put an impossible burden of proof on your opponent, and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage, because the polygamist, unlike the homosexual, is not denied the right to marry the person of his (first) choice.

This is what is called “legal reasoning,” and it is hard to take seriously. For one thing, there is nothing sacrosanct about precedent, especially in the Supreme Court. In Lawrence, the Court overruled a precedent that was not merely analogous to the case at hand, as Turner and Zablocki might be thought analogous to a case involving homosexual marriage, but identical to it. (The case was the notorious Bowers v. Hardwick, which had upheld the validity of criminalizing homosexual sodomy.) For another, it would be child’s play, as a matter of legal casuistry, to limit those two cases to conventional, monogamous, non-incestuous, heterosexual marriage.

Judges like to pretend that their decisions are dictated by “logic,” or by an authoritative text or precedent, because it downplays the element of judicial discretion, which worries people. The pretense wears particularly thin in constitutional cases about marriage and sex, because the Constitution does not say anything about these subjects, and the framers of the Constitution, and of the major amendments, in particular the Fourteenth Amendment, which is the principal source of constitutional rights against the states, were not thinking about marriage, sex, homosexuality, or related topics when they drafted these founding documents. (Neither were the ratifiers.) Decisions such as the four that I have mentioned, together with the Supreme Court’s other well-known sex-related decisions, such as Griswold v. Connecticut (holding that a state cannot forbid married couples to use contraceptives) and Roe v. Wade, are all “political” decisions—not in the narrow Democratic versus Republican sense, but in the sense of being motivated by values not dictated by the orthodox materials of judicial decision-making. Precedent and analogy operate as fig leaves in such cases.

Fundamentally, I don’t think it matters whether or not there’s a legal precedent for Padilla’s detention or the indefinite limbo of detainees at Gitmo. What matters is whether or not they are the right things for the government to be doing, and in my opinion, neither are consistent with American values. Belittle popular punching bag Stephen Reinhardt all you want for saying that—god knows I think he’s an idiot at least half the time—but don’t pretend that your cites are any better than his, because fundamentally they aren’t. It’s all politics, and those who dabble in constitutional law would be well-advised to keep that in mind when discussing the judiciary.

Meanwhile, PG of En Banc gets to the heart of the substance of my uneasiness with Eugene Volokh’s position on the Gitmo detainees. Eugene’s position may (or may not) be legally correct, but it strikes me as morally wrong. Elsewhere: Robert Prather agrees on Padilla and disagrees on Gitmo.

This is my entry in the OTB Beltway Traffic Jam for today.

Will Baude is less impressed than usual with my thoughts on the relative value of legalistic and attitudinal approaches to the law and, by extension, on the whole Guantanamo Bay thing.

First, to clarify, I was making an empirical rather than a normative argument. The nature of the Supreme Court is mixed—when there is a clear, controlling precedent that was ignored by a lower court, the behavior of the Court is usually to reverse and remand the decision without scheduling an oral argument (sometimes known as the “Ninth Circuit Smackdown” manoeuver), and when the lower-court decision was legally correct and consistent with precedent, the Court doesn’t grant certiorari. However, when the Court does grant cert—admittedly something it only does in a small minority of cases—the decisions are much more likely to be based on attitudinal considerations, or what normal people call “politics.” That’s the nature of the beast: work hard enough, and you can find a precedent for anything, or find a reason why Case X is distinct from the precedent that decided Case Y. If we’re going to analyze the Court’s decision-making, it should be viewed through this prism. This is one area—and perhaps the only area—where I think a number of political scientists understand more about the judiciary than lawyers do.

One normative issue, then, is how judges on lower courts should behave. The U.S. judiciary is designed as a principal-agent system: there’s a Supreme Court, and inferior courts. The Supremes decide what The Law is, the inferior courts implement The Law, and the Supremes make sure The Law is implemented correctly. Due to workload, however, the Supremes don’t function as a pure principal—some decisions escape their notice, and sometimes the system is gamed to ensure they don’t actually function as the principal (for example, see Piscataway v. Taxman, where a case was deliberately removed from the system to avoid intervention by the principal). Because of this, politicians want to fill the lower courts with mini-Scalias and Reinhardts, rather than wishy-washy O‘Connors,which politicizes the lower courts to no end. Is this a good thing? Probably not. As much as is possible, the law ought to be based on regular, institutionalized procedures—based on laws passed by the legislature, common law, and precedent. However, at the pinnacle of the system, I’m not sure it can be.

However, the larger normative question in this particular case is whether or not Reinhardt (more properly, the 9th Circuit) is right to intervene. On balance, I’d have to say intervention is right. The cost to the administration to justify its action before the judiciary is minimal compared to the potential cost to human liberty if the judiciary defers to executive judgment. At some level, it’s the Carolene question: nobody to the political right of Dennis Kuchinich is going to stick up for the people at Gitmo. At another level, it’s a question of separation of powers—the executive is essentially asserting the right to do whatever it wants without effective oversight from either Congress or the judiciary, including inventing its own secret judicial system out of whole cloth. Surely this ought to be troublesome, particularly to lawyers like Glenn Reynolds and Eugene Volokh, but their collective response seems to be “eh, it’s just Reinhardt” and micro-analysis of how, since we did the same thing with Germans in 1944, or because the sovereign status of Gitmo is subject to some obscure treaty provision, this is all just peachy.

Now, at some level I could care less about the people at Gitmo. I realize to some extent the foreign bleating about them would just be bleating about some other topic if we’d given them an all-expenses paid vacation at Club Med. As a diplomatic matter, I realize that we’re probably carrying water for the Australians and Brits with their detainees (god knows Tony Blair doesn’t want the headache of dealing with the British collaborators with the Taliban). The rest of the detainees are probably much better off at Gitmo than they would be in the hands of the Afghan, Saudi or Pakistani authorities—which is probably what I’d have done with them. That still doesn’t mean that I have to like it—or approve of the administration’s handling of the issue.

Sebastian Holdsclaw has extracted a rather interesting comment from a long thread at Left2Right about judicial interpretation of the Constitution. However, I don’t know if it will get me to abandon my long-held opinion (only reinforced by attempting to teach two entire constitutional law textbooks) that every judicial mode of reasoning is just an excuse for attitudinalism run rampant.