Sunday, August 14, 2011

Stop Whinging If You Haven't Read The Damn Decision

Murray Gleeson, former Chief Justice of the Australian High Court, was once reported as saying something that I thought was such a good summary of the proper role of courts that I want to repeat it here. (I can't seem to find the quote online, so I'm paraphrasing from memory - if it turns out he didn't say this, it's so good I don't want you to spoil my image)

He said that he was happy for anyone to offer any criticism they wanted of the High Court or any particular decisions. He only made the request that before they did so, they took the time to actually read the court's judgement.

Now, this isn't something that I think holds everywhere. I don't, for instance, think that one has to read Das Kapital to have an informed view that Communism is both wicked and stupid, nor do you have to pay Michael Moore to see Bowling for Columbine before one is allowed to venture the opinion the having a Lockheed Martin factory in Columbine was not the underlying reason for the massacre.

But the reason I think it's particularly valuable in the case of court opinions is that even a layman's reading through will quickly open your eyes to something very basic about the law: namely, that there is a difference between a good legal decision, and a desirable policy outcome.

This is almost never reflected in the popular reporting. It drives me batty that just about every report about court decisions on, say, gay marriage, focus entirely on whether it is desirable from a policy point of view, and whether this case has furthered it or not.

Just once, would it kill them to talk about how this decision fits into existing 14th Amendment jurisprudence? Would it kill them to briefly cite the arguments of the majority and minority?

There is a legal body that exists to decide what is the most desirable outcome to reflect social desires, and that body is the legislature. Now, even if you think that courts should have some role in this (and I don't), surely it's worth appreciating that they also have the role of accurately interpreting the law so that people live in a stable, predictable legal environment and can arrange their affairs accordingly? Surely the aim isn't just to arbitrarily do whatever the judge feels is just on that particular day?

And when you read the actual opinions, this perspective becomes apparent very quickly, even if you don't have a legal background. Because poorly-reasoned opinions make you cringe, even if you like the outcome. They make you realise that there's more to a court's job than just 'Do I want X to happen?'

Take the case of Atkins v. Virginia, in which the US Supreme Court held that allowing the death penalty for mentally retarded defendants was cruel and unusual punishment, and thus unconstitutional. Chief Justice Rehnquist and Justices Thomas and Scalia all dissented.

Now, in the mindset of the average person, what's the conclusion they draw?


Reader, I challenge you to read through his opinion (it's not very long) and tell me that this is a fair reflection of what this case is about.

Instead of repeating that, as lots of clowns do, how about you read the damn opinion and find out what he says the reasons are for his decision? Here's a hot tip - it's not based on a personal love of his of executing retards.

Instead, you will find lots of very reasonable arguments about
-ambiguity in the definition of what constitutes being retarded
-the fact that legislatures have the option of repealing the law but haven't done so
-that juries represent the proper avenue for deciding these matters
-And lots and lots of stuff about the far more important question of how this fits into the existing precedents on the matter, which are the proper business of courts.

You may disagree with his opinion, and lots of reasonable people do. But I bet you this - out of all the turkeys that are sure that Clarence Thomas is an embarrassment to the Supreme Court, less than 1 in 20 has read a single opinion of his. The embarrassment lies entirely with the people who go around repeating this without ever reading a word the man has written. These people embarrass the ideals of a democratic society. If you read some of his work and still think he's an embarrassment, I will disagree with you, but won't begrudge you that viewpoint.

Do what I do - even if you're not a lawyer, if a newspaper reports a decision that gets you fired up, stop scrolling the New York Times website immediately, type the name of the case into Google, and read the damn opinions.

Murray Gleeson will give you a big thumbs up for doing so, and Murray Gleeson is a cool dude.

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