Academic journal article Harvard Journal of Law & Public Policy

Scholars and Judges: Reason and Power

Academic journal article Harvard Journal of Law & Public Policy

Scholars and Judges: Reason and Power

Article excerpt

The just qadi (judge) will be brought on the Judgment Day, and confronted with such a harsh accounting that he will wish that he had never judged between any two, even as to a single date.(1)

Judges are three: two in Fire, and one in Paradise. A man who has knowledge, and judges by what he knows -- he is in Paradise. A man who is ignorant, and judges according to his ignorance -- he is in the Fire. A man who has knowledge, and judges by something other than his knowledge -- he is in the Fire.(2)

Last Fall I heard a news broadcast that the Massachusetts Supreme Judicial Court would that day hear argument in a suit by a man against his ex-wife to prevent her from having implanted in her frozen embryos created by them both while they were still married.(3) I remember my first, unreflecting reaction. It was as if scientists were nearing the carbon dating of a strange fossil, and so would settle once and for all the puzzle of dinosaur extinction. Then I realized how strange was my reflex. Just months before, I had been a member of that court, and if the case had come up earlier I might have been struggling to decide it with no more wisdom or knowledge than I had when I heard that broadcast.

My instinctive reaction finds reflection in the pervasive near reverence with which the public and the profession treats judges and their opinions. Judicial opinions are not quite the exclusive diet of scholars and law teachers that they used to be, but we still teach much of the law out of case books excerpting judicial opinions. Legal scholarship is still largely about judicial opinions. Theories about what the law is -- the legal realists notwithstanding -- are still mainly about what judicial opinions have said about the law. Nowhere is this truer than in constitutional law. Constitutional theories are constructed based on the most exquisite parsing of judicial opinions, a task made more intricate by the proliferation of cases in which there is no opinion of the court so that scholars offer Venn diagram-like analyses to arrive at the maximum common content of separate opinions.

Constitutional law is a text-based subject only in the sense that antitrust law is text-based. Antitrust law depends basically on three rather terse statutory provisions -- sections 1 and 2 of the Sherman Act(4) and section 12 of the Clayton Act;(5) yet, Professor Areeda's authoritative treatise has attained eleven volumes and is not yet complete.(6) Similarly, the text of the Constitution consists of some 68 sections and fills about fifteen pages in a standard constitutional law case book, yet there are now well over 500 volumes of Supreme Court cases, a large part of which deal with constitutional issues and announce constitutional law. Professor Tribe's constitutional law treatise, now in its third edition, runs over 1300 pages of small type in the first volume alone.(7) Clearly, constitutional law is judge-made law. It is not only judge-made law, but its main lines are set out by one court, the Supreme Court. Thus, it is on that Court that I focus in this Essay. In this respect, constitutional law resembles the English common law of contract or tort.(8) There are, however, these differences: Rules of constitutional law are generally about far more fundamental matters than any particular rule of tort or contract law, and legislatures cannot override these constitutional rules without amending the Constitution.

So it is no surprise that the Supreme Court is held in such awe -- power has that effect -- but it is also true that the Court from the beginning has conducted itself with a degree of circumspection, dignity, and conscientiousness that has enhanced this natural tendency to venerate power, while giving little ground for the equal and opposite tendency first to gossip about and then to deprecate any institution or person who is the subject of official veneration. Perhaps no institution of our government does its work at once so discretely and so openly. …

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