JUDGING CRIMES

A view of the bench from the trenches • by Joel Jacobsen

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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system. It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist. It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say. I know what they do because I deal with the consequences every day.

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power. But it is the exercise of power itself that should command our attention, not the justifications. Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it.

American law professors have long liked to say they teach their students "to think like a lawyer." Learning to think that way is a matter of internalizing certain assumptions. The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question. Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so. Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest.

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links. Many other blogs already do that, far better than I could hope to do. (Check out these.) Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine. I hope to post new pieces several times a week.

313. Too tricky

It's infuriating that the Supreme Court considers itself too grand to explain its plans for us. We just have to wait until they issue the press releases (called "opinions") justifying those plans after they're already put into action. But from the PR point of view, there's little room to doubt that the justices are better-advised to preserve a silence that the shallow can mistake for profound or principled.

Consider this object lesson in what happens when a justice tries to explain himself - and does so with unintended thoroughness. It's from a Washington Post chat with Robert Draper, compiler of Dead Certain, the Bush Administration's weirdly-narcissistic collective self-portrait:

Alexandria, Va.: Given that John Roberts specifically has repudiated your claim that he recommended Harriet Miers for a Supreme Court nomination, why should we rely on the accuracy of anything else in your book?
Robert Draper: I don't blame Chief Justice Roberts for attempting to disassociate himself from an ill-advised recommendation. But two well-placed administration officials told me about Roberts' advice, and I'm confident in their veracity. By the way, his spokesperson's statement was parse-worthy: "Chief Justice Roberts did not recommend Harriet Miers to President Bush." I believe that's correct; according to my sources, Roberts didn't issue his recommendation directly to the president.

I try to think good thoughts about the new Chief Justice, and I'm sure Bush could have done much worse. Roberts' dabbling in politics from the Court is a throwback to an earlier age, but seems mild enough as such Fortasizing goes. The prospect of members of the Court selecting their own colleagues is a little more alarming - the last thing we need is an even more insular Court.

But it's his indulgence in a not-false non-denial that serves as the clearest warning to the rest of us to keep on our toes. The plan is for this Jack Armstrong to be Chief for a very long time. But now we know his public words must be examined closely for what they don't say.

Posted on Sunday, September 16, 2007 at 09:15PM by

Joel Jacobsen in Not-false, Individual justices |

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This work is licensed under a Creative Commons License. This blog is strictly a personal project of the author. Nothing I write in the blog is written in my official capacity, nothing is approved or endorsed by my employer or clients, and I have no reason to believe my employer or clients agree with anything I say.