“This life is slow suicide, unless you read.”Herman Wouk

Thursday, August 08, 2019

The Divine Right of Judges

Federal courts get all the attention in the press. But over 39 million people look to the courts of the state of California as their primary source of justice under the law. The California court system is the largest in the nation. You might be interested to know how the jurists and practitioners approach the law within that system.

Roughly half of the litigants in the trial court come away feeling justice has not been done. Their remedy is to appeal the decision of the trial court in the Court of Appeal. So how does the Court of Appeal determine whether the trial court has given that person justice under the law?

The excerpt below comes from the Rutter Guide, probably the most prominent and authoritative practice guide used in California, and routinely cited in court opinions. This excerpt discusses the most "relevant factors" that appellate courts evaluate when reviewing decisions of the trial courts:
a. [1:50] Did the “right party” win? This fundamental question should be asked in every case. Whether the “right party” won requires an objective factual inquiry, and is one of the most difficult threshold issues trial counsel must confront (especially since, as a practical matter, trial counsel's judgment may be less than objective after years of “living with” the case).

If an independent and objective observer, after reviewing all the facts, is likely to conclude that the “right party” won at trial, the judgment will probably be affirmed. If the appellate court judges feel comfortable with the result, the odds are that any error at trial will be deemed “harmless,” because there was no “miscarriage of justice” (¶8:285 ff.).

Jon B. Eisenberg, Cal. Prac. Guide Civ. App. & Writs (The Rutter Group 2017) ¶ 1:50.

Let us recapitulate so far:
  1. The law will decide each case.
  2. If you lose your case and you believe it is against the law, you may appeal.
  3. The first step of the appeal is to determine whether the decision was against the law. If it is against the law, we go to the next step. 
  4. The next step of the appeal is to determine whether we like you. Objectively! Objectively! If we don't like you -- objectively! -- then you lose, the law be hanged.

I attended a talk years ago given by a justice of the California Court of Appeal who expressed, with approval, the same approach articulated in the excerpt above. Addressing a roomful of appellate attorneys, this justice said, in paraphrase, that in many cases, putting legal arguments aside, you know your client shouldn't win.

The principle of the rule of law is that it is the law that tells us who the "right party" is, that it is only the law that tells us if a client should or should not win. Is this the principle being expressed in the excerpt from a prominent and authoritative practice guide written for the largest court system in the United States, and in the above referenced remarks of a prominent appellate justice in that system?

The Myth of the Rule of Law is a 1995 law review article written by John Hasnas,  a visiting professor of law at Georgetown University Law Center and a professor of business at Georgetown’s McDonough School of Business. In that article, Prof. Hasnas wrote -- cynically, I once thought -- that "the law is made up of contradictory rules that can generate any conclusion, what conclusion one finds will be determined by what conclusion one looks for." He also wrote -- hyperbolically, I had hoped -- that "the law is always open to interpretation and there is no such thing as a normatively neutral interpretation." And he concluded -- merely theorizing, I prayed -- that:
The observation that the legal system is highly stable is, of course,correct, but it is a mistake to believe that this is because the law is determinate. The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions. Consider who the judges are in this country. Typically, they are people from a solid middle- to upper-class background who performed well at an appropriately prestigious undergraduate institution; demonstrated the ability to engage in the type of analytical reasoning that is measured by the standardized Law School Admissions Test; passed through the crucible of law school, complete with its methodological and political indoctrination; and went on to high-profile careers as attorneys, probably with a prestigious Wall Street-style law firm. To have been appointed to the bench, it is virtually certain that they were both politically moderate and well-connected, and, until recently, white males of the correct ethnic and religious pedigree. It should be clear that, culturally speaking, such a group will tend to be quite homogeneous, sharing a great many moral, spiritual, and political beliefs and values. Given this, it can hardly be surprising that there will be a high degree of agreement among judges as to how cases ought to be decided. But this agreement is due to the common set of normative presuppositions the judges share, not some immanent, objective meaning that exists within the rules of law.
Long before we suspected a "deep state" in our executive bureaucracy, there has been a "deep state" of legal elites in our judiciary all along. 

How can I resist Prof. Hasnas's conclusion any longer?

The Rule of Law is a "myth," then, conjured and sustained for the same reasons as the Divine Right of Kings: "to enlist the emotions of the public in support of society's political power structure." The Rule of Law is merely its successor, a modern upgrade of the earlier myth. "The myth of impersonal government is simply the most effective means of social control available to the state."

But recall that, under the Divine Right of Kings, the King is the head; he is supreme; he is above every thing, and there is no power by which he can be tried. If the Rule of Law be a myth, and no different from the Divine Right of Kings, then we have merely replaced one King with a thousand, finding our royalty not in Windsor but in every executive office and every judge's chambers.

But the logic is no different than as Samuel Johnson had found it: "Therefore, it is, Sir, that we hold the King can do no wrong; that whatever may happen to be wrong in government may not be above our reach, by being ascribed to Majesty. Redress is always to be had against oppression, by punishing the immediate agents. The King, though he should command, cannot force a Judge to condemn a man unjustly; therefore it is the Judge whom we prosecute and punish."

Making the necessary adjustments, under the Rule of Law we are to have our relief, not in law, which we have established is inaccessible to us, nor against Judges, which we have established are supreme and beyond our power to try, but "by punishing the immediate agents." This means, I take it, that we are to take up our writs against... the clerks of the court?

I fail to see we have improved matters.

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