Academic journal article Albany Law Review

How State Courts Can Help America Recover the Rule of Law: The Pennsylvania Experience

Academic journal article Albany Law Review

How State Courts Can Help America Recover the Rule of Law: The Pennsylvania Experience

Article excerpt

I. INTRODUCTION

Just before Thanksgiving, a jurisprudentially revealing and widely publicized debate about whether America has a rule of law took place between the President of the United States and the Chief Justice of the Supreme Court. (1) President Donald Trump criticized a judicial decision that went against his Administration as having been rendered by an "Obama judge." (2) Chief Justice John Roberts responded that "we do not have Obama judges or Trump judges." (3) The Chief Justice was defending judicial independence as a necessary aspect of the rule of law. (4)

But, instead of coming to his defense, most observers, on both sides of the political aisle, seemed to agree with President Trump. (5) Senate Minority Leader Chuck Schumer referred to the Chief Justice as a "Republican[]," thus illustrating President Trump's point about partisan judging. (6) Randy Barnett, probably the leading conservative legal theorist in America, tweeted, "If you don't think presidents of each party (try to) select judges with differing judicial philosophies, you haven't been paying attention. Roosevelt surely did. And he wasn't the first nor the last. The argumentation on this one is truly bizarre." (7)

Somehow, without most of us noticing, the idea of a rule of law has become intellectually implausible and politically indefensible. Most of us now seem to believe that the ideology of the judge is all important. (8) The implications of this change are dire.

There is a great deal of philosophically oriented literature about objectivity and the rule of law in this post-modern age, including Steve Smith's classic work, Law's Quandry. (9) It is not my intention here to repeat in any detail arguments that nihilism, by which I mean in this context, skepticism about the objectivity of values, has undermined the rule of law. Suffice it to say that for a classically oriented jurist like Justice John Harlan, legal decisions were understood to reflect a "rational continuum." (10) If rationality, instead, is just a front for power and political commitment, law as it was understood in our tradition is not possible.

Rather, my purpose is to begin to answer a question about how to go forward--"can a commitment to Truth be reintroduced in American law schools, and how, and when?" (11) The answer I propose is that truth can be reintroduced in law by attending to the healthy values discourse that still goes on in at least some state constitutional decision-making. I will illustrate that proposal by contrasting U.S. Supreme Court value skepticism with reasoned values engagement by the Pennsylvania Supreme Court. Of course, I will only highlight a very few instances of what I call the absence of the fear of subjectivity in the Pennsylvania tradition, but they are contexts in which similar judgments on the U.S. Supreme Court probably would bring forth such concerns.

I have not done the research to establish that Pennsylvania is representative of the nation in regard to values engagement, but my impression is that this is the case. State constitutional law seems simply healthier today than is the federal tradition.

In order for state courts to serve as an antidote to nihilism, it is also necessary to address the question of why state constitutional discourse is better able to engage in reasoned discourse about values. (12) Ironically, the suggestion raised in the final section of this Article is that it is the more political nature of state courts that permits state judges to be open about their values. That is to say, the problem of nihilism is not that there are Obama judges and Trump judges and is not that judges have different judicial philosophies. The problem of nihilism is the fatalism that describes this situation as fixed. (13) Since under skepticism there is no truth to discover, there is no possibility of persuasion and change. (14) We simply remain forever locked in our contrary positions.

What is needed, instead, is for judges to have an open conversation about values among themselves and with the people, so that democratic judgments can be rendered and law can advance. …

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