28 June 2018

Thank You For Your Service

… and I mean that more sincerely, Justice Kennedy, than do most people when saying the same thing to veterans. If only because — unlike most people who say "thank you for your service" to veterans caring only that they have the benefits of others' military service and personally didn't suffer the indignities thereof (and they are legion, literally) — I can appreciate your integrity in the service you performed. Even if I don't always appreciate the result (such as most of your opinions this term, which betrayed an increasing sense of fatigue in their overeasy reliance on the clarity of doctrine and determination to avoid difficult determinations of ultimate fact based upon contested evidence with more than one possible interpretation). Even if I ardently disagree with the mechanisms by which you reached some of those results… because you, after all, did not create either stare decisis or the corollary stagnation that kept Korematsu on the books as "good law" for over seventy years.

In the end, Mr Justice, you'll be remembered as a "swing justice" no matter how much you want to be remembered otherwise — not because you're anything other than a somewhat-conservatively-tinged moderate, but because in a few instances you were unable to evade the hardest part of the judicial power by mere reference to existing ideological norms. That so many of those instances related to sex and its consequences and implications reminds me of the passage in The Brethren discussing the notorious National Lampoon cartoon on obscenity, in a rather uncomfortable way. Nonetheless — as is the default in American law — your evaluation of factual controversies was itself staunchly ideological in a way that all too often evades the real basis for the judicial power: Facilitating the resolution of specific live disputes short of bloodshed. That is necessarily going to involve, at times, telling people (even when those people are in true good faith, which is less common than the ideology of "deference" would have us believe) that their policy preferences are consistent with neither the facts/evidence as in the record nor with a careful evaluation of the facts/evidence as in the record that supports legal doctrine itself. As a back-handed compliment, your failings in this respect are less obvious and less serious than most of the American judiciary (even when operating in good faith — which is not universal, as witness the state-court resistence to race-based equality rampant when you were a young lawyer).

If there is a true fault, it is the fallaciously Aristotelian nature of precedent in Anglo-American common law: That if a set of facts that can be described a certain way by lawyers who neither experienced them nor directly investigated them is present, there either is or is not a particular result mandated by law. But failure to acknowledge context, boundary conditions, and even the mere infelicity of description of "facts" by lawyers at all levels who often do not understand "facts" or the methods of reasoning from "evidence" to "facts" (and their pitfalls) is nonetheless a problem with the judicial power as it has evolved. Eppur si muove, guys; Mr Justice, you were not prepared personally to do differently, and the profession's own ideology and arrogance (not just partisan, although that reinforcement surely makes matters worse) would have been a significant barrier if you were.

As a flawed human being like the rest of us, you did a creditable job of upholding your oath and the general duties of the judicial power. It's too bad that upholding all of the duties of the judicial power is something that is selected against by the selection process for judicial officers: Whether through the federal confirmation process or any of the state-level counterparts, those committed to speaking truth to power are not ordinarily viable candidates absent some other kind of sponsorship. You did your job to the best of your ability as you saw it, and given the poor track record for that in the highest reaches of power (both governmental and otherwise) that's a service that I can and do appreciate.