Intelligence or Wisdom?
"This central feature of the Constitution [the public rights doctrine] must be anchored in rules, not set adrift in some multifactored 'balancing test'." -- J. Scalia
There seems to be some discussion about what type of rules it's best for the Supreme Court to be handing down to its lower courts. Some people like balancing tests. Others, like Justice Scalia, prefer bright line rules. To be sure, each has its advantages. Bright line rules give lower court judges clear guidance as to how to decide cases; balancing tests give those judges the flexibility to decide cases the way they think they ought to be decided. For example, take the issue of when the delay of an indictment violates a defendant's right to due process. Some federal circuits use a bright line rule: unless the prosecutor is acting to purposely gain advantage or recklessly, there's no due process violation. Other circuits use a balancing test, weighing the reasons the prosecutor has for the delay against the predjudice to the defendant.
Obviously neither sort of test is going to always be the correct test. Equally obviously, there are often going to be aspects to a test that look quite bright-line. To continue the previous example, both tests involve the bright line rule that there always has to be some predjudice to the defendant for there to be a due process violation. But it seems to me that, generally, a balancing test is preferable to a bright line rule.
Consider what the primary attribute of a judge is. A judge is, traditionally at least, someone known for their wisdom. Consider one of the most famous judges of antiquity, King Solomon. He was known, quite explicitly, for having legendary wisdom, and his legendary wisdom is connected with being a legendary judge. But it seems to me that bright line rules involve intelligence more than wisdom. Intelligence has to do with applying a principle to a set of facts; it has to do with having a rule and knowing how to follow it. But wisdom, or phronesis as we might call it, has to do with being able to pick among competing principles, which is much more like a balancing test.
Take an analogy to moral reasoning. Moral philosophers distinguish between the use of reason, which prescribes the best way to a given end, and wisdom, which chooses between different possible ends. And it seems to me that applying a balancing test is more like choosing between different ends, and that applying a bright-line rule is more like choosing the best way to a given end. (The given end being, in this case, the correct application of the rule).
So why does it matter? Well, as I mentioned above, the traditional prime attribute of a judge is wisdom; the traditional rule is to balance competing interests. Of course, there's not necessarily a lot of value in a blind adherence to tradition. But at the same time, all things being equal, it's probably better to follow tradition than not. But more than that, it seems to me that the overuse of bright line rules shows a lack of trust in the lower court judges. And it is inevitable that, if the Justices of the Supreme Court are signaling that they don't trust the lower court judges, that laypersons will pick up on this as well.
There seems to be some discussion about what type of rules it's best for the Supreme Court to be handing down to its lower courts. Some people like balancing tests. Others, like Justice Scalia, prefer bright line rules. To be sure, each has its advantages. Bright line rules give lower court judges clear guidance as to how to decide cases; balancing tests give those judges the flexibility to decide cases the way they think they ought to be decided. For example, take the issue of when the delay of an indictment violates a defendant's right to due process. Some federal circuits use a bright line rule: unless the prosecutor is acting to purposely gain advantage or recklessly, there's no due process violation. Other circuits use a balancing test, weighing the reasons the prosecutor has for the delay against the predjudice to the defendant.
Obviously neither sort of test is going to always be the correct test. Equally obviously, there are often going to be aspects to a test that look quite bright-line. To continue the previous example, both tests involve the bright line rule that there always has to be some predjudice to the defendant for there to be a due process violation. But it seems to me that, generally, a balancing test is preferable to a bright line rule.
Consider what the primary attribute of a judge is. A judge is, traditionally at least, someone known for their wisdom. Consider one of the most famous judges of antiquity, King Solomon. He was known, quite explicitly, for having legendary wisdom, and his legendary wisdom is connected with being a legendary judge. But it seems to me that bright line rules involve intelligence more than wisdom. Intelligence has to do with applying a principle to a set of facts; it has to do with having a rule and knowing how to follow it. But wisdom, or phronesis as we might call it, has to do with being able to pick among competing principles, which is much more like a balancing test.
Take an analogy to moral reasoning. Moral philosophers distinguish between the use of reason, which prescribes the best way to a given end, and wisdom, which chooses between different possible ends. And it seems to me that applying a balancing test is more like choosing between different ends, and that applying a bright-line rule is more like choosing the best way to a given end. (The given end being, in this case, the correct application of the rule).
So why does it matter? Well, as I mentioned above, the traditional prime attribute of a judge is wisdom; the traditional rule is to balance competing interests. Of course, there's not necessarily a lot of value in a blind adherence to tradition. But at the same time, all things being equal, it's probably better to follow tradition than not. But more than that, it seems to me that the overuse of bright line rules shows a lack of trust in the lower court judges. And it is inevitable that, if the Justices of the Supreme Court are signaling that they don't trust the lower court judges, that laypersons will pick up on this as well.
posted by Mad Jurist at 12:06 PM
2 Comments:
Layperson speaking:
Before deciding which kind of method to use (bright line rules or balancing tests) perhaps you should consider the method you use to chose a judge. Some judges are political appointees, some are elected.... Will these methods chose wise judges you can trust to use balancing tests?
Mike N from Belleville (play Minions or be shunned!)
Well, we could all wish for a better method. Both the political appointee method and the election method have their flaws, and have their advantages. But given that this is the choice we have, I prefer the lifetime appointee method. A judge that has to run for reelection has to always take this into consideration when she is making her judgments. But a judge appointed for life can ignore these political considerations to make what she thinks is the right decision. And history bears this out -- there are innumerable Justices who have disappointed their appointer by not being quite as conservative/liberal as their appointer thought they were.
Of course, it would be ideal if we could just pick out the wisest people to be judges, but for that we'd need some sort of spell that would allow us to find out who has an 18 wisdom. And, sadly, we don't have that sort of spell.
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