Effective Management of Judicial System Scenario
Scenario: You find yourself stranded at Reagan National Airport late at night with only two other people seated nearby, Supreme Court associate Justices Clarence Thomas and Ruth Bader Ginsburg. The airport and its shops and restaurant are shut down due to a power failure. There isn’t enough light for reading and there are no video screens or other distractions around. After the three of you engage is some humorous bantering discussing how contemporary U.S. public administration’s legal dimension looks from alternatively, what conversation ensues (dialog)? This is a once in a lifetime chance to tell key architects of the legal dimension, who are frequently on opposite sides of The Supreme Court decisions, what you like and dislike about the legal dimension and how you think it could be improved. Remember, the lights may go on and the conversation may end at any moment, so there is no need to tell the justices things that they already should know.
#Legal dimension: Focus on one or more of the following-constitutional law and administrative law statutes, individual court decisions, and case law; the impact of judicial decisions and doctrines on public administration/management; the collective impact of court decisions on federalism, the separation of powers, public employees rights, and effective management
In this essay, I will focus on the issue of effective management of the judicial system. I’d like to express my disregard for and the skepticism about the role of judges as performing a liberating function as upholders of the justice and rule of law. In other words, I wish to discuss at the airport with the Supreme Court Associate Justices Clarence Thomas and Ruth Bader Ginsburg in a dialog format about how the judges in their capacity are not giving effect to the letter of the law (as stated in the constitution of the country) and serving the political and legal system of the country which is based upon the ideas of liberalism and democracy. In fact, I argue that judges are in fact exercising a non-democratic function in their capacity as interpreters of the letter of law. Through this discussion dialog with the Associate Justices I will reflect at the ethical dimension of the nature of public administrative work and suggest possible improvements within the judicial framework.
For instance, as Adam Mcwhinney argues that it is a myth to say that judges merely interpret the law and clarify it. In fact, he argues that the very nature of judicial process entails that judges fill in the content of the law in substantial terms and create law when there is none (McWhinney). This suggestion is in line with the Dworkinian interpretation, where he (Dworkin) argues that judges do not merely give effect to the law (as it states) but they have the power to derogate from the letter of the law in order to come up with a justification for a legal decision which as per their view fits in well with the overall narrative of the common law (Dworkin). Although a highly different account than Dworkin’s, Hart’s account of law also admits that sometimes there are gaps in law and it is the job of the judges to fill in the gaps of law. However, here, Hart argues that judges do not make such decisions about what law shall be based upon any moral consideration. He argues that judges do have full discretion with regards to what the law shall be (Himma). Similarly, a more cautious and defensive view of discretion within the administrative framework is taken by Warren (Warren).
Thus, before we analyse the arguments of these legal philosophers, we have to understand what could possibly be the import of such assertions, if they are proven valid. If it is proven that judges have a wide discretion (and discretion means a full leeway to do what one in the role of a judge decides), this would imply that judges can and do make laws which violate the idea of democracy upon which the entire U.S. constitution is set. Thus, for instance, in the case of R v R (the case of marital rape) the judges decided that it was a violation of law and morality for a husband to forcibly have sexual intercourse with his wife. In that case, the husband was charged with rape for forcibly having sex with his wife, even when there existed no such crime in the book of law at the time of the event. This case reflects how judges can make laws, which (although not in this case) but in other case may be against the democratic spirit of the American political system and against the opinions of the majority of the people as well as their elected representatives in the Congress.
Some theorists such as Richard Posner have tried to mask this blatant fact by providing a very subtle and nuanced account of the judicial decision-making process. For instance, in his classic work, ‘How Judges Think’ he analyses and evaluates a wide range of theories as to what goes on in the mind of judges when they are behind the bench. One among such theory argued that since judges are human beings, he concedes that there’s a real prospect that their decisions are prejudiced by their (judges’) political affiliations, religious ideologies (particularly in relation to public morality) and most of these biases and background reasons remain invisible (Posner). Thus, the judges hardly make laws which focuses exclusively upon the merits of the case and ignores wider social, political or normative considerations.
Seen this way, we can argue that the entire process of judicial-making seems not-so-perfect as it does at the first blush. Rather than reflecting the detached, objective and unbiased decision-making attitude, the judicial process now suddenly seems as a partisan enterprise. If judges are humans (which they of course are) and cannot disconnect their judicial mind from their social personhood, things take a very ugly turn if we realise that what passes on as law and the sacred ideal of justice and fairness is in fact a highly one-sided and incomplete set of principles. However, this view may be regarded as a highly simplistic one, and it may be countered that the judicial discretion is in fact a highly essential feature of the legal system. For instance, as Douglas Edlin would argue, the judicial discretion allows the judges to serve the spirit of law and prevent injustices if the letter of the law is applied strictly. Edlin argues that by the nature of their legal capacity, judges have a moral obligation to disapply and repeal unjust laws and to correct the shortcomings of the centuries’ old corpus of common law (Edlin). Alternatively, it may be argued that it is this judicial discretion that allows judges to put a humane face to the harsh and formal application of law (Vila).
Contrariwise, one must distinguish between cases where the application of law can be deemed to be fair and cases where the application of law in this discretionary-fashion remains controversial. And one may notice that the number of cases where discretion -from mainstream corpus of accepted meanings of law- is practiced is received as fair as compared to the vast majority of cases where the discretion is criticized and remains polemical. Thus, one may argue that in most cases, the exercise of discretion doesn’t settle the law for the people. Instead, the exercise of law confuses people, and it becomes hard for them to know or predict with any sufficient degree of certainty what the outcome of a case will be.
Now, you may be wondering how is this relevant to my dialog, with the Supreme Court Associate Justices Clarence Thomas and Ruth Bader Ginsburg at the airport, about the role and nature of public administration. What I have just discussed appears like a digression from public administration to legal theory. However, I argue that such ‘digression’ is necessary to bring forth the ‘ethical’ and ‘humane’ idea of the practices in the public administration. Rather than seeing the American public administrators as leaders, who are to be idealized, and who make tough decisions to guide the destiny of the nation’s progress, we come to see them as imperfect human beings (just like the rest of us) trying to devise policies for our not-so-perfect world. This realization brings with it a somewhat realistic understand of the world we live in, and allows us to be more sensitive to the real issues of human rights, justice, fairness and liberalism that surround us. Thus, in broader terms, the problems of judges as public officials represent the problem of decision-making that all public officials face. While, on the one hand they are driven by their commitment to give effect to the law and regulations of the state, they also have to balance off the application of regulations with their own personal convictions of what is right.
This I argue that there shall be a greater understanding of what kind of discretions public officials have, and the scope of such discretions shall be minimized unless it’s absolutely necessary for practical reasons for public officials to be allowed such discretions in the first place. Moreover, even if discretion is allowed in cases, the public bodies shall not give off an impression that their laws are absolute, and error-free. Instead, they shall allow more rights to appeal for general public.
However, since, in this theoretical scenario of the airport conversation with Supreme Court Associate Justices, I’d like to propose that there shall be a system of checks and balances upon judges, particularly in the lower benches and in lower courts, where majority of the legal decisions take place. Since I am in conversation with two of the most esteemed and senior judicial officers of the country, I believe they have the capacity to make a system whereby judges themselves can be held accountable for digressing from the accepted and mainstream legal thinking, and in cases where their discretion makes a lot of difference to citizens’ rights. Although this may seem like a silly idea, especially since the decisions of the lower judges may be challenged via an appeal to higher legal bench, it must be noted that unless there’s a system to hold judges accountable in their professional capacity, they’d continue to make new laws and apply current laws in situations which may lead to gross injustice. Thus, the state bodies shall set up a clear policy regarding discretion.
This shall make public officials more considerate of their sensitive nature of duties and will encourage them to develop a critical-reflective attitude about what law means to them and to all of us [as would be argued by O’Leary & Rosenbloom (Rosenbloom and O’Leary) ].The state shall train their judges in such a way that if they have to exercise their discretion, they do it in the most rights-friendly way possible, else they could be held to account. If these suggestions are incorporated, it’d not only promote fairness and justice but would also give general public an impression that public officials are not above the law, and are in fact constrained in their professional capacities. It is only when people have a confidence in the workings of public officials that people would believe in justice and efficiency and social progress would be made.
Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1988. Print.
Edlin, Douglas. “The Justice of Common Law.” judges and unjust laws: Common Law Constitutionalism and. Ann Arbor: the university of michigan press, 2010. Print.
Himma, KE. “Judicial discretion and the concept of law.” Oxford Journal of Legal Studies (1999): 71-82. Print.
McWhinney, Edward. “Constitutional Review and Judicial Procedure.” Supreme Courts and Judicial Law-Making: Constitutional Tribunals and Constitutional Review. Boston: Martinus Nijhoff, 1986. 1-22.
Posner, Richard A. How Judges Think. Cambridge: Harvard University Press, 2008. Print.
Rosenbloom, David H. and Rosemary O’Leary. Public Administration and Law. M.Dekker, 1997. Print.
Vila, Marisa Iglesias. Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited. Springer, 2001. Print.
Warren, Kenneth. Administrative Law in the Political System. Boulder: Westview Press, 2011. Print.