Justice as Fairness

"Justice is the first virtue of social institutions, as truth is of systems of thought." John Rawls, A Theory of Justice, 3

"[A] society is well-ordered when it is not only designed to advance the good of its members but when it is also effectively regulated by a public conception of justice." 4-5

"[W]e are to imagine that those who engage in social cooperation choose together, in one joint act, the principles which are to assign basic rights and duties to and to determine the division of social benefits. Men are to decide in advance how they are to regulate their claims against one another and what is to be the foundation charter of their society. Just as each person must decide by rational reflection what constitutes his good, that is, the system of ends which it is rational for him to pursue, so a group of persons must decide once and for all what is to count among them as just and unjust." 11-12

"[A] society satisfying the principles of justice as fairness comes as close as a society can to being a voluntary scheme, for it meets the principles which free and equal persons would assent to under circumstances that are fair." 13

"[T]he principle of utility is incompatible with the conception of social cooperation among equals for mutual advantage. It appears to be inconsistent with the idea of reciprocity implicit in the notion of a well-ordered society. ...[P]ersons in the initial situation would choose two rather different principles [from the principle of utility]: the first requires equality in the assignment of basic rights and duties, while the second holds that social and economic inequalities, for example inequalities of wealth and authority, are just only if they result in compensating benefits for everyone, and in particular for the least advantaged member of society. These principles rule out justifying institutions on the ground that the hardships of some are offset by a greater good in the aggregate. It may be expedient but it is not just that some should have less in order that others may prosper. But there is no injustice in the greater benefits earned by a few provided that the situation of persons not so fortunate is thereby improved. The intuitive idea is that since everyone's well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw forth the willing cooperation of everyone taking part in it, including those less well situated. ... The two principles mentioned seem to be a fair agreement on the basis of which those better endowed, or more fortunate in their social position, neither of which we can be said to deserve, could expect the willing cooperation of others when some workable scheme is a necessary condition of the welfare of all. Once we decide to look for a conception of justice that nullifies the accidents of natural endowment and the contingencies of social circumstance as counters in quest for political and economic advantage, we are led to these principles. They express the result of leaving aside those aspects of the social world that seem arbitrary from a moral point of view." 14-15

"[O]ne conception of justice is more reasonable than another, or justifiable with respect to it, if rational persons in the initial situation would choose its principles over those of the other for the role of justice. Conceptions of justice are to be ranked by their acceptability to persons so circumstances." 17

"[I]t seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles. It also seems widely agreed that it should be impossible to tailor principles to the circumstances of one's own case. We should insure further that particular inclinations and aspirations, and persons' conceptions of their good do not affect the principles adopted. The aim is to rule out those principles that it would be rational to propose for acceptance, however little the chance of success, only if one knew certain things that are irrelevant from the standpoint of justice. For example, if a man knew that he was wealthy, he might find it rational to advance the principle that various taxes for welfare measures be counted unjust; if he knew that he was poor, he would most likely propose the contrary principle. To represent the desired restrictions one imagines a situation in which everyone is deprived of this sort of information. One excludes the knowledge of those contingencies which sets men at odds and allows them to be guided by their prejudices." 18-19

"We shall want to say that certain principles of justice are justified because they would be agreed to in an initial situation of equality." 21

Incredible

I am baffled. Everywhere I turn, it seems, I read or hear some opinionated commentator either attacking or defending President Obama's nomination of Judge Sonia Sotomayor for the upcoming vacancy on the United States Supreme Court.

The degree of abject ignorance on the issue of what a judge does and what, beyond that, an appellate judge does is astounding. What's more, even seemingly bright people who should know better resort to canned, irrelevant arguments. They have formed their opinions before all the facts are in. Their feelings lead.

This is precisely the opposite of how a judicial opinion is formed. These knee-jerk commentators, however, assume that because that's how they work (they form their opinions based on how they feel about things [politics, culture, self-interest, etc.] and then argue based on their beliefs—ignoring or misconstruing facts that provide counter-examples to their opinions) they assume that because that's how they operate that's how judges work, how they decide cases. This is another species (the political variety) of the obstinate ignorance I blogged about just below.

I recall a series of questions on the LSAT about credibility. They went something like this:

Who is more credible? 

1. a conservative plumber expounding on the debt financing crisis of the 21st Century; 
2. a liberal clergy person explaining particle physics and String Theory; 
3. a lesbian chemist discussing theories of moral reasoning; 
4. a spokesman for the oil industry arguing against proposed environmental regulations; 
5. a famous actor who plays a doctor on TV asking you to purchase a certain medication; 
6. a white journalist tracing the effects on former slaves of Reconstruction legal decisions; or
7. a Mexican historian describing the aftermath of the Battle of Antietam among Lee's generals.

Obviously, this is only an approximation of the type of question, but it is illustrative. The point is:  there are relative degrees of credibility.

People who might really know how to read and critique a poem or a novel, or how to launch an effective PR campaign, or how to attack liberal politicians on TV are taking sides on the Sotomayor nomination—mostly attacking her. She used such-and-such words in a speech ten years ago. She is ethnic, maybe even Mexican. She belonged to some community group I know nothing about. She is a woman. She has a funny name. She eats funny foods. She is not like me. She is empathetic.

It's preposterous. Plain and simple: None of these flacks knows how to read a judicial or appellate opinion. They have no concept of legal reasoning. They have never tried to extract a rule or principle of law from a diverse or even contradictory set of cases. They don't know how a set of facts is properly established in a trial setting. They couldn't apply a statute or rule or even an established legal principle to a complex fact pattern, much less decide between applicable but conflicting legal or statutory or statutory or Constitutional priorities. They have not critically read all the historical decisions of the Supreme Court on any given Constitutional issue. Nor, most likely, has any of them clerked for Judge Sotomayor or argued before her or observed her courtroom manner or read all of her opinions (including the arguments that were before her).

Yet they are attacking her.

I personally have never argued before Judge Sotomayor, though I have prepared briefs for senior lawyers who have. I have read any number of her opinions (often in preparation for writing just such a brief so I could see what sort of arguments she found persuasive).  However, I simply don't have an opinion about her fitness for the Court. As I indicated in my previous post, this is why I could never be a pundit or a TV talking head. I don't form knee-jerk opinions based on my own predispositions or political predilections.

I suspect, however, because President Obama was famously a professor of Constitutional Law at one of the premier law schools in this country, that he has a sense of the caliber of her judicial mind. (I could never give the MBA president the same benefit of the doubt for reasons I've articulated a number of times in this blog. His picks were more overtly political in nature [think Harriet Myers], I felt. He wanted certain outcomes from his picks. Obama, if I read him right, is more interested in the process and the legal reasoning than the outcomes—which, to the uninitiated is the heart and soul of the law! Something they can never quite comprehend.)

Eventually, some commentators will appear who've made the effort to read all, or at least most of, her decisions. There will be attorneys who've argued before her—winners and losers. There will be her colleagues from the Southern District of New York and on the 2d Circuit Court of Appeals (arguably the pre-eminent such court in the country) who may or may not have something to say about the way she has dealt with them on the panels and en banc, who understand how she approaches the decision-making process. It is important to listen to such arguably quite credible sources—especially the winners who are against her and the losers who are for her and don't have some sort of political axe to grind.  Read some of her opinions (you can find many of them on line).  Listen to the Senate hearings.  Take all points of view into consideration. Try to understand the rationales of both sides. Assess their relative credibility. Judge for yourself.

Just recognize, a judicial opinion is not like "I like Coke better than Pepsi" or "I pull for the Tar Heels" or "I always vote Republican" or "I hate Winnipeg."  It's a lot more complicated and involves a process in which both sides on any given issue have had an opportunity to give it their best shot in an adversarial proceeding; and the judge has taken their relative contributions into consideration, weighed the arguments against the appropriate legal standards, and rendered a decision with the sort of legal reasoning that can be applied again and again (except, of course, in cases like Bush v. Gore, but that's a post for another day).  And those who don't know this or don't understand this or refuse to acknowledge this—they are simply not credible, no matter how loud they shout or blog or Tweet.

Ignorance of the law is no excuse.

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Btw: If you're interested, here's an essay by George Lakoff concerning that whole "empathy" matter. I've posted plenty about agápē and Max Scheler and humanism and the (un-)wisdom of crowds, among other things, if you want to know my own view.

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UPDATE: Here's a great piece by another of my favorites, Stanley Fish, on this issue. Sorry I missed it the first time around. He makes the distinction between a decision that seems to be technically legally correct and yet seems unjust and one that is just but doesn't necessarily appear to follow the legal precedents strictly. On the surface, this is a valid distinction. But at the time many of the law review articles he cites were written, there simply weren't that many precedents to draw on. Since, say 1984, we've witnessed an explosion of case law of almost geometric proportions. Frankly, any good judge can find a precedent or even a thread of legal reasoning that conforms with his notion of justice; you just have to know how to frame the issue and do your research. What's more, a really good judge looks at all the precedents and then attempts to derive sound principles from them, especially where there are conflicting rulings—asking: what principle are these rulings attempting to inculcate?—and then applies the principle (not the strict legal precedent) to the case at hand. Harmonizing conflicting or even hostile legal rulings thus is a high-powered legal skill. Having a sound, consistent, and coherent set of principles and knowing how they apply and, importantly, when to apply them is the mark a great legal mind. And this, as I've argued above, is quite different from simply having a knee-jerk political reaction ("I'm pro-business", "I'm anti-abortion", "I'm anti-gun control", "I'm pro-States Rights"—that's you, Justice Thomas) and basing one's decisions on one's predilections or interests.