Judges, legislators, and executives are people, too.
We are very fond of pointing to the "rule of law" as a superior alternative to the "rule of men" in this country, and indeed in most (but not all) established democracies. Unfortunately, the Whorfian implications of these slogans have overcome the real issues to which those slogans refer. More accurately, we have a choice between personal discretion constrained primarily by impersonal rules (closest to the "rule of law") and personal discretion constrained primarily—and, at the extreme, only—by the discretion of other members of the ruling class (closest to the "rule of man"). The key is not whether "man"—with his/her fallibility, prejudices, ignorance, and self-interests—is "ruling", because there is inherently a human decisionmaker. It is what constrains those decisions. Put another way, we haven't put HAL-9000 in charge, because there isn't a HAL-9000: "rules of law" are not self-executing, self-interpreting, and perfect.
Without looking at the substance, one can infer a great deal about what is intended to bound discretion to act from the structure involved. The two main characteristics that our Constitution imposes structurally on our government are parallelism (the "checks and balances," among other factors) and hierarchical independence. The latter requires some more explanation, and perhaps comparison to the alternatives. In eighteenth-century (and previous) governments as actually implemented, each level of government had the absolute right and ability to overrule and micromanage every aspect of government at "subordinate levels"—and frequently took advantage of that right and ability. The Chancellor of the Exchequer could, and all too often did, overrule tax assessments based upon partisan loyalty; similarly for every other example, and continuing to today. The life-tenure system with limited judicial power—and, despite the Supreme Court's power to declare the law, it is helpless to enforce it or pay for it—removes one branch of the tree from the pressures of the next election. Both the Perfesser and Professor Solum are correct that the branch has, in practice, become too beholden to the last election; but that is merely intellectual dishonesty by the actors, not an institutional failure per se.
The parliamentary alternative, which allows the legislative branch to overrule anything done by any other branch, is not really more "democratic" than the bicameral system, or for that matter the three-legged system we have now (let alone the federalism underlying it). All that does is define who gets to be the referee. Imagine, for a moment, that the upcoming FA Cup Final between Manchester United and Millwall is to be refereed by an individual selected by vote of the fans of each club. Given the difference in fanbase, Man U's choice is foreordained. In turn, that referee is to at least some extent beholden to those interests—and the tie (or close call) goes to the voter base. What this does, in the end, is entrench majorities in power, particularly in the face of the disenfranchised. Let's add the fanbase of, say, Liverpool FC to the FA Cup Final example. If allowing the Liverpool fans to have a vote takes a prior majority vote of the existing electorate, a sufficiently entrenched majority has no interest in doing so. [note 1] Having the FA appoint the referee isn't really that much better in practice, because the FA leadership has a strong big-club bias. Institutionally, though, that is the correct decision.
Turning to the Ninth Amendment question, then, one must ask whether the perceived problems with the judiciary, "judicial activism" (which in theory means exceeding the institutional bounds of discretion, but in practice means exceeding the bounds of the observer's preferences), and judicial confirmation reflect an institutional failure or a human failure. [note 2] Let's take the hypothetical instance in which a judge knowingly and willfully ignores a Ninth Amendment imperative, and decides the opposite way. Or, to satisfy the meticulous, five Supreme Court justices agree explicitly on such a rationale. Are the executive branch and the legislative branch powerless in the face of such a decision? Well, there is the extraordinarily difficult amendment process, perhaps likened to the use of goal-line cameras after the fact to determine whether the ball crossed the line. [note 3] This is a "self-correcting" aspect of the institution that acts as a check on the most extreme examples of "incorrect" judgment. The Sixteenth Amendment is an excellent example of this process.
Consider, then, a closer question, such as offside. The referee's assistant has not much over three seconds at the outside to make the recommendation to the referee that a particular play is offside. The referee has independent authority to accept such a recommendation, reject such a recommendation, or decide without any recommendation at all. What this really boils down to is the question of our trust in the referee, as fans and as players. To say the least, this is often an outcome-determined judgment: Not many teams (or their fans) who win will excoriate the referee personally. They might disagree with particular decisions, or even concede that some important decisions in their favor were incorrect. The personal attacks almost always come from losing teams (and their fans), because on the whole the FA does a pretty good job of ensuring that the best referees handle the most important matches. [note 4] The referee, however, is human; and therefore fallible; and therefore subject to criticism by observers, whether truly neutral or neutral in name only.
The real problem at the root of the disagreement between the Perfesser and Professor Solum is not the Ninth Amendment. It is the strength of stare decisis and the power of precedent. Sometimes, stare decisis becomes excessive, particularly when a result from a no-longer-extant context provides the decisional rule in a noncomparable matter; Lochner, Plessy, and Korematsu/Hirabayashi are perhaps the best examples in Supreme Court jurisprudence. [note 5] Sometimes, not enough attention gets paid to previous results. That the constancy of change implies that the "seasoned precedent" rule is not a good one is beside the point, because the rate of change is different in different matters and contexts. In any event, the key question is this one:
Do the outlier ("difficult") cases so vastly outweigh the majority of cases that they demonstrate an institutional failure?
I think not. Leaving aside the question of "obscurity" for the moment, let's look at the reversal rate of the Ninth Circuit. Many commentators point to a higher-than-the-other-circuits reversal rate as "proof" that somehow the Ninth Circuit is out of touch. What is the correct context, though? Is it the cases that self-select as reviewable because at least one party has the resources to apply for certiorari? I think not. The correct measure is the reversal rate of total decisions, not just those that are "important enough" for review. Leaving aside the "excessive decimal" issue, this reversal rate is not statistically different from six other circuits. Surprisingly, the Federal and Fourth Circuits have the highest reversal rate since 1996.
Keep in mind, too, that typically ten or fewer cases per Term of the Supreme Court can even be considered possible examples of "judicial overreaching". For every Lawrence, there are six or seven Dastars. And, if you didn't understand that comparison, that is precisely the point. The hard cases are always going to provide more reasonable rationales for disagreement; but the courts, unlike the legislature, do not ordinarily have the option of refusing to decide. The parliamentary alternative both violates the concept of "final judgment", because any litigant can go to the legislative branch and ask for a retroactive overruling, and merely shifts the question of which governmental body is/can be coopted by nondemocratic interests to a different one.
In the end, then, the problem that we have is that we can only strive for a more-perfect union, not a perfect one. We're human. We're going to make mistakes. Hopefully, we'll collectively have the wisdom to recognize those errors and find an appropriate method of dealing with them. Expecting perfection from judges—or referees—is not only unrealistic; it is antithetical to the concept of democratic government, which by its very nature recognizes, and even celebrates, dissent. I do not, however, agree with Professor Solum's advocacy of "formalism" as an alternative; it rests on an untenable distinction between "law" and "politics." To only mildly misquote Clauswitz—the implication is there in the last third of On War—law is merely politics continued by other means. This is especially true at the constitutional level, where all of the "real disputes" inherently have a political context; but that is for another time.
Notes
- This is a deliberately silly example. Using a "more realistic" example would both bring in the substantive justice question, given the reputation of Millwall's fans for less-than-civilized behavior, and obscure the result.
- Yes, I know, the answer is "both." Bear with me for a moment, though, because the answer will remain the same, for reasons that should be obvious.
- The irony that the vast majority of the time the camera and the referee's judgment will agree should not be underestimated. However, this is a different question: the comparison of human judgment to an "impersonal" judgment established by humans that bears a reputation for objectivity. In other words, we've reflexively ended up in the human failures v. institutional failures question again, having moved only the goalposts—not the argument.
- This implies that random assignment of decisionmakers, as is normally done in lower courts, may not be the best idea, and that higher courts should be more "competence directed" in choosing judges for particular panels. The reality is that they are; but that is for another time.
- While I also think these cases were wrongly decided, I am looking for the moment only at their misuse later to prevent the law from remaining contextually relevant. I am sure that there are some decisions out there with which I agree in substance that have the same problem; but this is my blawg, so I'm not going there.