We often hear these days that a judge who rules for a criminal defendant is “soft” on crime, that a judge who rules against an employee “likes” corporations, and so many other things along those lines. And maybe talking or writing about cases in these simplistic ways is easier and more exciting than trying to communicate the underlying and often technical (and, yes, sometimes boring) legal reasons why one side won and the other lost a particular case. After all, a case that on its surface looks like it’s about whether the accused should escape punishment or a worker can recover damages from his employer often winds up really being about a statute of limitations, the demands of precedent, or some essential rule of procedure that one side or the other neglected. And retelling these details is sure a lot less exciting (and a lot less likely to attract eyeballs and clicks).
Maybe, too, we hear so much about judges “liking” or “disliking” this or that group of persons because we’ve lost sight of the limited job judges are meant to perform under our Constitution. Maybe we’ve come to think of them like politicians who make law rather than neutral arbiters who are simply supposed to follow it. Yet judges in our constitutional order aren’t supposed to act like philosopher-kings, care about their personal popularity, or spend time guessing whether their decisions will win acclaim or promote one cause or another. In the last chapter, I discussed some of the tools of interpretation that can help keep a judge safe from these pitfalls. But like any job, there’s more to it than the tools; there’s the art of how those tools are used, and that’s the subject of this chapter.
When it comes to the art of judging, I’ve learned over the years from watching my mentors and heroes that a good judge knows a few things. A good judge knows that often the lawyers in the case have lived with it for months or years and thought deeply about it long before the judge enters the picture; they deserve the judge’s respect as valuable colleagues whose thinking can be mined and tested to better the judge’s own. A good judge recognizes that existing judicial precedents reflect the considered judgment of judges who have come before and sometimes embody the settled expectations of those in our own generation. A good judge listens carefully to colleagues, appreciating the different perspectives each brings to bear. A good judge always questions not only the positions espoused by the litigants but his own tentative conclusions as they evolve. Pride of position and fear of embarrassment associated with changing one’s mind play no useful role; regular and healthy doses of self-skepticism always do.
While judging is meant to be a relatively humble business, that does not mean it’s an easy one. In every case, someone must win and someone must lose and the only sure guarantee is that 50 percent of the parties before you will be unhappy with your decisions 100 percent of the time. Remaining faithful to the judicial oath to apply, and not to remake, the law means there will be many days when the judge finds himself bound to enforce statutes he personally dislikes or to hold unconstitutional ones he prefers. Often enough, the judge will find himself forced to rule against the “good guy” and in favor of the “bad” one because that is what the law and facts demand. Through it all, the judge can only take faith in the hope that, by enforcing the law’s demands rather than his preferences, he is serving a larger purpose by helping make real the rule of law and passing down its vital protections from one generation to the next.
To do this and no more can be a lonely business. When a social crisis presses or a case becomes heated, the calls for that day’s going conception of “justice” are sure to multiply loudly. People can easily forget that the law is meant to protect the beloved and the detested alike, and a judge who enforces the law equally for disfavored and favored persons alike will not usually win a popularity contest. But our founders knew, expected, and even demanded this. To secure the “inflexible and uniform adherence to the rights of the Constitution,” they knew judges would need to show “fortitude” and “integrity” (Federalist No. 78). To encourage that kind of judicial courage—and to that end alone—they afforded judges extraordinary independence from the political branches and electoral pressures.
When I think of courageous judges, I sometimes think of Frank Johnson, whose story is beautifully told in his obituary and by Judge Kethledge and Michael Erwin in Lead Yourself First: Inspiring Leadership Through Solitude. Appointed to the bench by President Eisenhower, Judge Johnson served first as a district and later as a circuit judge in his home state of Alabama. Seeking to follow the original understanding of the Equal Protection Clause and Supreme Court precedents like Brown v. Board of Education, he issued one decision after another that protected the civil rights of African-Americans in a time and place that required high measures of both fortitude and integrity. Johnson once said that his “philosophy as a trial judge and as an appellate judge is to follow the law and the facts without regard to the consequences.” Whether he meant “consequences” for the parties or for himself or both I don’t know, but the fact is that ruling according to the law and the facts alone was no easy thing. As a result of his rulings, his community branded him a pariah. He was shunned on the street and snubbed in church. His life was threatened repeatedly; crosses were even burned on his front lawn. His circle of friends grew small. To be sure, as he became a villain to some he became a hero to others. Time magazine put him on its cover in 1967. But there’s a lesson here too. For while in his day the judge was both hated and revered, the reality is that few remember him today. And that, I’ve learned, is exactly how it should be. For a good judge knows that flattery and scorn alike are fleeting and false guides.
I think that is exactly what Justice White was trying to teach me so many years ago as we walked that hallway filled with portraits of past justices, and what he was trying to teach me when he later shared one of his favorite poems, “If,” which includes these lines:
If you can trust yourself when all men doubt you,
But make allowance for their doubting too…
Or being hated, don’t give way to hating…
If you can meet with Triumph and Disaster
And treat those two impostors just the same…
Yours is the Earth and everything that’s in it….