APRIL 24, 2004

[Remarks delivered at a meeting of the

Amherst Colloquium on the American Founding]


The recent discussions over confirmation of judicial nominees to the federal bench are the latest exchanges in the larger debate over the definition of law that has been ongoing in the courts, in the academy, and in the media of our country for two decades now. The fundamental question being asked in this debate is whether law is in fact an institution separate and apart from politics, and if it is not, whether it ought to be. This larger debate is quite possibly the most significant that can be had in a constitutional order.

As this debate over what law is has unfolded, judicial candidates, politicians, and even judges, have scrambled for appealing political labels to affix to their respective jurisprudential views, hoping to persuade the participants in the debate that their particular jurisprudence is the most legitimate under our Constitution, and therefore the one to which all should subscribe.

In this scramble, one label has surfaced more than most, and that is the label of "compassion." Both liberal and conservative jurisprudence are defended today on the ground that they are compassionate.

Indeed, to an extent, the national debate over the definition and direction of law is currently being framed as a question of which jurisprudential model, conservative or liberal, is the more compassionate. Thus could The New York Times showcase the debate in its magazine cover story last spring profiling the court on which I sit, the United States Court of Appeals for the Fourth Circuit, in this way (and I quote): "To critics, the Fourth Circuit lacks compassion for the individual. To admirers, the Fourth Circuit is a welcome corrective after years of soft, liberally activist benches, a court with a healthy respect for the concerns of prosecutors, of business owners, of state officials -- and of the Bush Administration[.]" The implication of framing the debate in this way is obvious: The more compassionate the jurisprudence is, the more legitimate is that jurisprudence.

The New York Times, rest assured, is not an innovator in its framing of the debate in these terms. This is becoming entirely common. In defense of liberal jurisprudence, it is argued that its adherents are compassionate in their judicial decisions toward individuals in our society, over the institutional entities of society, such as businesses, corporations, manufacturers, law enforcement, and the state and federal governments. And in defense of conservative jurisprudence, it is argued that its adherents are compassionate in their decisions toward the institutional or collective entities in our society, over the individual.

According to these respective defenses of liberal and conservative jurisprudence, when liberal judges rule, they consider principally the individual plaintiff in the case, ignoring (it is said by critics) the injury that may have been suffered by the society collective. In contrast, when conservative judges rule, they personalize the social injury, considering the individuals who are not before the court, but who nonetheless suffer when there is harm to the collective.

Particularized, the argument goes like this. When conservative jurists decide cases in favor of businesses and corporations, and against employees who claim workplace discrimination or other individual civil rights plaintiffs, they reach compassionate results, no less so than liberal jurists do when they decide cases in favor of the individual plaintiffs, because the collective entities provide needed goods and services, in addition to employment and opportunity for investment.

When conservative jurists decide cases in favor of manufacturers and against individuals injured by defective products in products liability litigation, they are compassionate, because they protect against the scarcity of goods that would result were they not to give effect to their compassionate instincts for manufacturers.

When conservative jurists decide cases in favor of physicians and against individual malpractice plaintiffs, they are compassionate, because malpractice damage awards, like product liability awards, can drive up prices and prevent needed services from reaching the market, thus ultimately decreasing patient safety.

And when conservative jurists decide cases in favor of the police over the individual criminal defendant in constitutional, section 1983, qualified immunity, and like litigation, they are compassionate, because they take into consideration the harm suffered by the victims of crime, and the citizenry at large, which suffers from police inaction due to fear of suit.

Conservative jurists are, on these bases it is said, just as compassionate as liberal jurists, and their jurisprudence just as compassionate as that of their liberal counterparts; it is just that the objects of their compassion differ from those of the liberal jurists, who extend their compassion instead to the individuals who claim to have been harmed at the hands of the collective.

I ascribe to my colleagues who label themselves "conservative" far more nuanced and considerably more defensible jurisprudential views than these simplistic ones that have been ascribed to them in putative defense of their jurisprudence. And I ascribe to my colleagues who label themselves "liberal" far more nuanced and considerably more defensible jurisprudential views than those that have been ascribed to them. But these are the labels that have begun to be used in the debate, and, it appears likely, will continue to be used, as this debate proceeds.


Before I begin discussion of these defenses of conservative and liberal jurisprudence that have been made, let me note my objection to affixing to judges the labels of "conservative" and "liberal," which are applied to politicians. I similarly object to the identification of jurists with the President who appointed them, just as every politician is identified as Republican, Democrat, or Independent. I believe that such is no less than to sponsor the perception, and, with time, to infix the belief, that the policy views of the politician, as he is labeled, are those of the jurist, as he is like labeled -- that there is, in other words, no institution of law separate and apart from politics.

I believe that judges should not only refuse to adorn themselves with, but decline to accept, these partisan political labels. Such an official refusal would serve as a needed and continual reminder, if only a symbolic one, that the judicial and the political are, in fact, not one in the same -- contrary to the message conveyed by the labels -- and that they should never be permitted to become the same.

This said, I will not attempt to deny the convenience of, if not the need for, proxy in conversation and in reporting about the courts. In these contexts, if the labels would be used cautiously and responsibly, and not for the purpose of politicization, at least the passion of my objection to their use would be reduced. I would, therefore, say to those in the media who cover the courts, "if you insist upon labeling me a liberal jurist, I will not object, provided you define the term as you use it and deploy it without partisan political objective."

I will even use these labels myself today, because I address myself to jurisprudences that have been so labeled by others.


With this objection noted, I offer the following observations for your consideration.

Not only is the defense of compassion toward the so-called collective entities of society not a defense of any jurisprudence with which I am familiar. It is a defense of a jurisprudence that (however labeled) is indefensible -- both legally and politically.

As to its legal indefensibility, it is no more legitimate for one judge to infuse into the law his personal affinity for business, the prosecution, or the government, than it is for another to infuse into the law his different affinity for a particular individual plaintiff who claims to have been harmed at the hands of one of these defendants, or another to infuse his entirely different affinities into the law, which he is likewise charged solely with interpreting. To maintain otherwise is to insult the intelligence of the opponents (whoever they are) of that jurisprudence (whatever it is). And it is to provide grist for any of those opponents who would contend that such a jurisprudence is activist, pure and simple.

As to the political indefensibility of such a jurisprudence (and, because of the constitutional role played by the political branches, political defensibility is relevant), need I do more than pose the rhetorical question in this way: What politician would stand before the voters and exhort them toward a deeper sense of compassion -- compassion -- for the Nation's businesses and corporations, its federal and state prosecutors, and its federal, state and local governments, so that no business, no corporation, no prosecutor, and no government bureaucrat is left behind? Such would be not merely to flirt with, but to court, all-but-certain political defeat. Compassion for the institutional entities of society simply is not the compassion that political candidates commonly encourage with campaign trail rhetoric and that elected political leaders attempt to deliver via statehouse legislation. When our political candidates and elected officials speak of compassion, they speak not of beneficence toward society's institutional entities, but, rather, of public justice, and public and private largess, for the victims of invidious discrimination, for the disenfranchised, and for those in our society who have not, or who have little.


But turning to the specific point that I wish to make today, this defense of compassion toward the collective entities of society is not in any way a defense of what I understand (and I believe most others understand) that the conservative jurist believes, even if it explains what the conservative politician believes and is perfectly entitled to believe.

And what is more, neither should such be the defense of conservative jurisprudence.

Indeed, if one were required to choose between this model of conservative jurisprudence (as one that is compassionate toward society's institutions over individuals), and the competing model of liberal jurisprudence (as one that is compassionate toward the disenfranchised, the victimized, the needy, and the less fortunate, over institutions), then the model of the liberal jurist actually would be far and away the more defensible. After all, the Constitution is a charter whose very purpose is to delineate, and thereby limit, the powers of the collective as against the individual, the purpose presumptively underlying the proffered model of liberal jurisprudence. In addition, it is almost certainly the model of liberal jurisprudence that is the more faithful to our obligation as courts of law to decide only the case before us, as it has been brought by the particular litigants who are before us: Ours is not to survey the landscape beyond the four corners of a litigation to ensure that entities not party to the suit are protected, as proposed in the proffered model of conservative jurisprudence.

Returning, though, to the conservative jurist, I doubt it would even occur to him to describe his attitude or disposition toward business, prosecutors, or the state or federal government as one of "compassion" for those entities. And no more likely would he be to characterize his jurisprudence as "compassionate" toward these institutions.

The conservative jurist might describe his attitude or disposition as one of "respect" for, or of appreciation of, the vital role that these institutions play in American society. And he might argue that adherence to his jurisprudence often does yield compassionate results (although, as I will suggest, only as a product of law and his faithful interpretation of that law, not as a product of the application of his own sense of compassion). But he would not characterize his attitude or disposition as one of "compassion" for these formal institutions, or his jurisprudence as grounded in "compassion" for these institutions.

These are forced characterizations.

More fundamentally, though, even were the conservative jurist to conceptualize and describe his attitude or disposition toward these collective entities as one of compassion, and his jurisprudence as grounded in compassion toward these entities, he would not, and should not, believe that that compassion should play any role in his individual decisions. If a particular employee who claims workplace discrimination or other civil rights plaintiff, or criminal defendant in a suit under the Constitution or section 1983, is entitled to prevail on the particular cause of action or claim that is presented to the court for decision, then that civil rights plaintiff or criminal defendant should (and must) prevail. The conservative jurist should not believe, any more than should the liberal jurist believe, that his personal view as to what compassion requires in the particular circumstance of that case (wholly divorced from what the law requires in that particular circumstance) ought factor into his decision as to whether one or the other of the parties before him prevails. The conservative jurist should believe, as should the liberal jurist, that his own personal sense of compassion, and what it requires as between the two parties before him, is without place in his decision of a particular case, whether or not the law is entirely clear, and, in fact, especially when the law is not entirely clear.

The conservative jurist should be uncomfortable with the activism represented by introduction of such a purely personal and highly subjective element as his own sense of compassion into the decisionmaking calculus of a particular case, as should be the liberal jurist with the introduction of his assertedly different, but also purely personal, views into that calculus. The conservative jurist who advocates infusing his personal views into particular cases ought admit that such is open confirmation of the legitimacy of the charge leveled against his jurisprudence, that it is no different from the liberal activism he criticizes, except in its pursuit of a different set of political objectives.

Of course, so also should the liberal jurist admit the introduction of his different subjective dispositions into the same calculus also to be activism.

It should matter not to either jurist that his activism is employed "intelligently" or "modestly," as the defenders of conservative jurisprudence on the ground of its compassion toward society's institutions have contended activism must be; the conservative and liberal jurist alike should regard activism in moderation (even intelligent activism) as no more defensible than activism in excess, and the attempted defense of such as folly.

Nor should compassionate activism be viewed by either jurist as justifiable, if it is employed in pursuit of objects for which he has personal affinity. Indeed, each, the conservative and the liberal jurist, should believe it most important that he restrain himself precisely when the objects of his affinity are before him. He should believe that his activism is not justified by the ends it seeks to secure, any more than the other's activism can be justified by the different ends it seeks to secure. There is, both should believe, no such thing as "good" or "justifiable" judicial activism; all activism is in defiance of law.

The conservative jurist, as the liberal jurist, should defend with every ounce of his judicial might the imperatives that the party who comes before him entitled under law to prevail, must prevail, and that neither the plaintiff's nor the defendant's likelihood of prevailing should be dependent in any way upon considerations external to the law, such as the personal predilections of the particular judges assigned to his case, however laudable those predilections be. He should not decide for the collective entity and against the individual, or for the individual and against the collective, because of any affinity for either, but rather only because that decision is required of him by law. He should believe that if, under the law, the individual civil rights plaintiff is entitled to prevail, then he must be adjudged to prevail, and, conversely, that if, under law, the corporation or business is entitled to prevail, then that corporation or business must be adjudged to prevail.

The conservative jurist and the liberal jurist should believe equally that to embrace a jurisprudence that recognizes a role for the purely personal view of the judge in the actual decision of cases -- even one that pledges intelligence and modesty in its performance and claims virtue as its object -- is nothing more than to engage the judicial activist possessed of a different political or social agenda on the latter's own terms. He should believe that this is an engagement that could not be won by one or the other -- and ought not be won by either. For if either jurist so disposed is victorious in such an engagement, then law will have become nothing beyond the wield of raw power by whomever happens at the time to have greater numbers on the federal courts.

Listen carefully to this, if to nothing else that I have to say. If, as has been asserted, a judge's personal instincts of compassion may properly become a consideration in the decision of specific cases before the court; and if (as has been asserted) the liberal jurists' compassions most naturally extend to individual plaintiffs and the conservative jurists' compassions most naturally extend to the collective entities of society; and if the numbers of liberal jurists at the time exceed the numbers of conservative jurists; then individual plaintiffs, rather than society's collective entities, will prevail in the courts. If, on the other hand, at any given time the numbers of conservative jurists exceed the numbers of liberal jurists, then the collective entities of society, rather than the individual plaintiffs, shall prevail in the Nation's courts.

But, whether the result be one or the other, it will be so, not because of law, but in repudiation of law.

Live by the sword, die by the sword.

If one is unwilling to die by the sword he wields himself, then he should accept that which the activist rejects: That law is an institution separate and apart from politics. And that those charged with the sacred responsibility of its interpretation must forsake their own personal politics (however they label that politics) the moment they put on the judicial robe. For only through the complete forsaking of personal politics will the judicial result that is reached be the expression not of the politics of the particular judge who decides the case, but of the politics of the People, from whom that judge derives his power -- which is what judicial interpretations of law are to be, by design of the Constitution.

Acceptance of the rule of law as so defined, it should go without saying, entails acceptance by the jurist that these principles are as important a restraint upon him, as he argues they ought be upon others. As a consequence, he should understand, he cannot even the score for what he perceives to be the wrongs of the past, and at the same time remain faithful to these principles by which he is externally bound, by which he internally binds himself, and by which he expects those of different political mind also to be bound. He should accept the limitation that these principles place on his loaned power, if for no other reason, then out of the simple conviction that requiter would be a betrayal of his oath.


In sum, then, the conservative jurist should hesitate, not rush, to defend his conservative jurisprudence on the ground that it is "compassionate" toward the institutional or collective entities of our society. And so also should the liberal jurist hesitate before defending his jurisprudence on the ground of its compassion differently directed; this, if for no other reason than out of recognition that even something thought to have an agreed-upon definition, like compassion, in the end lies in the eye of the beholder. In other words, it can and will be said by some that every party to litigation arrives before the court with a call on the instincts of compassion somehow defined -- as the peculiar defense of conservative jurisprudence that is presently being made confirms. Instead, each the conservative jurist and the liberal jurist, should defend his jurisprudence on the straightforward grounds that his jurisprudence so defined is not only most faithful to the role assigned him by the Constitution, but is that jurisprudence mandated by law itself.


None of this is to say that either the conservative or the liberal jurist should believe that compassion plays no role in the legal order, or even that his jurisprudence does not yield compassionate results -- whether of the kind we typically mean when we refer to such, or the kind that it is being said that conservative jurisprudence yields. Quite the contrary.

The conservative and liberal jurist alike should believe that compassion plays a central role in the legal order. Moreover, one no less than the other should be content if that role proves a starring one. But both should believe that compassion's part in this order is entrusted to the political representatives of the People, not to them, as unelected and unaccountable judicial officers who serve for life; and therefore, they should believe, compassion's part is played out in the deliberation over, and the formulation of, law by those representatives, not by judges in the decision of individual cases, through imposition of their own personal views as to the compassion, equity, or justice of the particular case.

Thus may the conservative jurist and the liberal jurist, alike, believe that his respective jurisprudence can yield results that are compassionate. But each should understand that when compassionate results are yielded, they are not the products of his own intercession on behalf of a personal view of compassion, but, rather, the products exclusively of the will of the People, as expressed through the laws that he but faithfully interprets.

It is in this belief, not in the belief that he should impose his personal view of compassion cautiously and in moderation, that the modesty and the humility of each jurist (whether conservative or liberal) evidences itself.


The jurist, be he conservative or liberal, should believe all of these things, first and foremost, because of an article of faith that the political branches, not the judiciary, have been charged by the Constitution with balancing the myriad of competing societal interests (safety, security, economics, welfare, benevolence, compassion, initiative, industriousness, discipline, accountability) that are invariably implicated by laws wide in scope. He should believe that this power been conferred by the Constitution upon the political branches because of their ultimate accountability to the People in whom the democratic power must always reside. To the judiciary has been denied this power, he should believe, precisely because of its ultimate unaccountability to the People.

But he should believe these things because of his profound understanding that one man's compassion is another's insensibility; that one man's heartfelt compassion for the collective is another's callous indifference toward the victimized, the injured, the discriminated against, the needy, and the less fortunate among us -- a truth that has been unsettlingly drawn into relief by the attempted defense of conservative jurisprudence on the peculiar grounds of its compassion for the collective institutions of our society.


These are the principles, I believe, to which conservative jurists adhere. These are the principles, I believe, to which all jurists, however they are labeled or label themselves, should adhere, if law is to be anything different, if it is to be anything beyond, mere partisan politics.

But, in all events, the conservative jurist should not be ascribed the contrary views on his behalf. And no more so should the liberal jurist be ascribed the similar views that inhere in the characterization of his jurisprudence as different only in its pursuit of compassion differently directed.

That is, at least not without their advice and consent.


Thus stated, the fair question arises of how do we first, detect, and, then, having detected, purge, judicial activism from the decisionmaking process. As we begin our discussion, let me suggest this, which we can explore in greater detail as the weekend progresses. At the end of the day, other than conscience, it is only intellectual honesty and intellectual rigor, and the accountability that these render possible, that can restrain a judiciary that serves for life and at the pleasure of no one. It is precisely because of the fact that intellectual honesty and analytical scrupulousness of conventional jurisprudence (i.e., the painstaking determination of law from precedent and the faithful and meticulous application of that law to the particular facts of the litigation), and the resulting accountability, do serve as a bridle upon the courts, that honesty and scrupulousness have been eschewed in many quarters in favor of the intellectually lazier and jurisprudentially misbegotten enterprise of decision by personal policy preference.

If we were to restore intellectual honesty and analytical rigor to judicial decisionmaking -- as well as to the public dialogue over the courts and law -- I believe we would find that the differences among us are not as great as the current, polarizing rhetoric suggests. Indeed, through an honest and good faith dialogue, I suspect we might even bring truce to the destructive political war that is being waged over the courts, and stem the further politicization of law which already must be counted as among this war's heavy costs.


But whether one accepts intellectual rigor, or some other set of doctrinal tools, as the ultimate check on judicial activism, it strikes me that all of us who have interest in the important debate over law that is underway would benefit from the reminder that the purpose of this debate must not be permitted to become (as for many it already has become) the partisan one of positioning either political party such that it can seat on the federal courts individuals who will deliver unto their sponsors the items that are included in that party's political agenda or platform. Rather, the high purpose of this debate must always remain the precise opposite, namely, the prevention of what will be the certain politicization of law by the cynical partisan, otherwise.

If the debate is honestly framed and pursued by all of us who join in this debate, then raw partisan politics, and the complete politicization of law that it threatens, will suffer defeat, as it ought. The rule of law will prevail, as it ought. And if in the end such proves to be the product, then, even for all its rancor, the debate will have been worth the considerable price it will have exacted.

Thank you very much for having me here today. I look forward to our discussions.