Someone asks how you would act given the reality of being a justice of the USSC. Sometimes enjoying role playing games, I responded:
I would realize I am part of a large system, one of nine, having no power of the purse or army to carry out my commands, and will be influenced by many factors, including professionalism, the sense of duty arising from my place and yes personal opinions, experiences and values. ALL judges will in some fashion have such things. All federal judges have life tenure.
As to important cases. Loads of them are not. Even constitutional cases repeatedly are small. Some narrow issue of the 4A. The legitimacy of some state tax law promoting an end that could be done in some other fashion etc. A district judge has important duties too. S/he can preside over a trial and determine (with broad discretion) how much time to lock a person in a hellhole or any number of lesser things.* Many "interesting questions" are only decided by appellate judges, particularly since the USSC avoids them. GITMO has largely been overseen by the DC Court of Appeals. [I'd add that just as lower court judges often do not have the final say, justices often really do not either or convince themselves that they don't.]
And, when the USSC decides, a large number of cases are decided by supermajority votes. Yes, there are close cases, some that are very important. And, personal factors influence this along with the weight of the office itself. But, this is the nature of the system. Life tenure, e.g., is supposed to make them more independent. I'm unsure though what change would occur if instead they had let's say a 15 year term. It might help -- Scalia seems to have gotten worse lately and Douglas got lazy. And, it would bring in new blood, especially now that modern realities result in judges able to spend much more time on the bench. But, only so much.
So, how would I act? Bottom line, I would try to honestly carry out my affirmation (I wouldn't swear an oath) to do my job. And, partially knowing I'm 1 of 9 and part of an ongoing institution, that would mean I couldn't just do what I thought best is some perfect world. Yes, my personal views would influence me. And, sometimes I would act pragmatically or by compromise, as people do, including in juries and multi-member judicial panels.
Finally, in response to a discussion in the comments regarding judges convincing themselves they will merely "decide the law" and not in some significant fashion be influenced by personal experiences and biases, well, that is just a fiction we in some fashion promote. The judicial nomination process, e.g., is something of a dance. But, even there, some truth leaks out. And, anyway, we can be honest among ourselves, and some judges are as well. Justice Sotomayor, putting aside doing her part in the dance, is open now about how her experiences influences her judging. And, this still doesn't mean that is all that will matter. This is seen by the supermajority votes in a many a case in the Supreme Court, even if the justice might given his or her druthers vote another way.
I do welcome the discussion, as also noted, because it helps promote an honest accounting of judging and this can help when deciding how to deal with the situation. Still, there can be some overcorrection there, like noting the problems with the Mets without needing to just stay they stink or make tiresome cheap shots or comments that are basically stupid. The overreaction, like some dubious speech, is itself educational though.
ETA: I like egarber's reply overall though the opening gambit of Federalist 78 etc. is something of an exaggeration of much of a justice's job. The cases overall are often a matter of not restraining the legislature or executive as such but providing some order in the law as a whole.
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* A trial judge will be overseen by various layers of appellate review, including in sentencing matters, but still has broad freedom of action and this review takes time. A "be the judge" in local state proceeding here shows this pretty well.
I would realize I am part of a large system, one of nine, having no power of the purse or army to carry out my commands, and will be influenced by many factors, including professionalism, the sense of duty arising from my place and yes personal opinions, experiences and values. ALL judges will in some fashion have such things. All federal judges have life tenure.
As to important cases. Loads of them are not. Even constitutional cases repeatedly are small. Some narrow issue of the 4A. The legitimacy of some state tax law promoting an end that could be done in some other fashion etc. A district judge has important duties too. S/he can preside over a trial and determine (with broad discretion) how much time to lock a person in a hellhole or any number of lesser things.* Many "interesting questions" are only decided by appellate judges, particularly since the USSC avoids them. GITMO has largely been overseen by the DC Court of Appeals. [I'd add that just as lower court judges often do not have the final say, justices often really do not either or convince themselves that they don't.]
And, when the USSC decides, a large number of cases are decided by supermajority votes. Yes, there are close cases, some that are very important. And, personal factors influence this along with the weight of the office itself. But, this is the nature of the system. Life tenure, e.g., is supposed to make them more independent. I'm unsure though what change would occur if instead they had let's say a 15 year term. It might help -- Scalia seems to have gotten worse lately and Douglas got lazy. And, it would bring in new blood, especially now that modern realities result in judges able to spend much more time on the bench. But, only so much.
So, how would I act? Bottom line, I would try to honestly carry out my affirmation (I wouldn't swear an oath) to do my job. And, partially knowing I'm 1 of 9 and part of an ongoing institution, that would mean I couldn't just do what I thought best is some perfect world. Yes, my personal views would influence me. And, sometimes I would act pragmatically or by compromise, as people do, including in juries and multi-member judicial panels.
Finally, in response to a discussion in the comments regarding judges convincing themselves they will merely "decide the law" and not in some significant fashion be influenced by personal experiences and biases, well, that is just a fiction we in some fashion promote. The judicial nomination process, e.g., is something of a dance. But, even there, some truth leaks out. And, anyway, we can be honest among ourselves, and some judges are as well. Justice Sotomayor, putting aside doing her part in the dance, is open now about how her experiences influences her judging. And, this still doesn't mean that is all that will matter. This is seen by the supermajority votes in a many a case in the Supreme Court, even if the justice might given his or her druthers vote another way.
I do welcome the discussion, as also noted, because it helps promote an honest accounting of judging and this can help when deciding how to deal with the situation. Still, there can be some overcorrection there, like noting the problems with the Mets without needing to just stay they stink or make tiresome cheap shots or comments that are basically stupid. The overreaction, like some dubious speech, is itself educational though.
ETA: I like egarber's reply overall though the opening gambit of Federalist 78 etc. is something of an exaggeration of much of a justice's job. The cases overall are often a matter of not restraining the legislature or executive as such but providing some order in the law as a whole.
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* A trial judge will be overseen by various layers of appellate review, including in sentencing matters, but still has broad freedom of action and this review takes time. A "be the judge" in local state proceeding here shows this pretty well.
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Thanks for your .02!