Findlaw had a good essay yesterday on the human side of judging, including the fact that "we read such texts [like the Constitution] in part through the prism of personal experience and belief -- and we invest those texts with meaning accordingly."
I want to highlight the words "in part" - judges don't just use personal predilections and sentiments, but it does affect their judgments. This also highlights the importance of the nominating/confirmation process, one that simply cannot be left to some allegedly "ideal" "neutral" thing such as "ability" or whatnot. It also shows judges aren't machines. We don't want them be either. People are all over the place in the courts, for good or ill. Ignoring the point is a fool's errand at some point.
I think this also can serve as a bridge to something else. A recent post on the Slate fray discussed the issue of the concurring opinion gone wild -- confusingly split courts in which justices only sign on to a portion of the majority opinion if that. Three opinions were handed down yesterday. How do they stand up?
[see here for discussions of these cases, including the fact the guidelines case perhaps is a bit less helpful than I suggest -- some argue in fact Stevens' opinion does cloud the issue, splitting the majority in the process.]
Interestingly. TELLABS, INC. concerns a statutory matter of some significance, if somewhat technical in nature. Six justices joined the majority opinion, Scalia and Alito had separate concurrences, and Stevens dissented. Both concurrences agreed with the majority in part. Scalia's concurrence is pretty personal ("I fail to see how") which appears to be why Alito concurred separately -- he repeatedly noted he agreed with Scalia's approach, so its unclear why his concurrence was necessary. It was low key though, underlining the "personal" nature of judging in a different fashion.
RITA v. UNITED STATES is actually a pretty successful example of the ability (or putative ability, your call) of CJ Roberts to advance unanimity. It deals with the tricky and divisive question of sentencing guidelines, quite divisive nature that split the Court various ways. The opinion for the Court was written by Breyer, who likes them, and dislikes recent precedent that limited their use. But, he's game for compromise, and found a "split the baby" route.
Some find it problematic and various lawyers/judges don't care for it. Stevens is right to say that at some point you have to stop debating and set forth some rules to follow. So, it is useful that the Court found a way to write an opinion to which six justices could join. Stevens/Ginsburg had a separate opinion, but it was of the "why I went along" variety. Scalia/Thomas went their own way, only agreeing to part of the majority. Souter thought the compromise constitutionally dubious, so dissented.
BRENTWOOD ACADEMY involving recruiting rules underlines the post's concerns:
Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III, and IV, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined, and an opinion with respect to Part II–A, in which Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Scalia, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment.
A look at the concurrences suggests that all nine basically agreed this is a fairly easy case, but did not agree with one means of argument. Since five justices didn't agree, noting the point in a shortish opinion not as substantive as a majority opinion, this is esp. curious/dubious. One might ask why Stevens was actually given the assignment given this breakdown. It might be a matter of splitting things evenly or some other reason.
But, it underlines the issue of unnecessary fractured courts. Anyway, end of the term about here. Expect some more multi-faceted opinions of the court and a slew of concurrences!