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July 07, 2005

What's Wrong With Predictable Justice?

Cass Sunstein over at the American Prospect has an article on why we shouldn't be able to predict how a Supreme Court Justice will rule in a case-- praising Sandra Day O'Connor for her unpredictability:

members of the Supreme Court should be expected to grapple with the facts and the law, and fair grappling will often lead fair people in unexpected directions...The conclusions of good judges can’t always be predicted in advance; their inclinations yield when life -- and law -- turn up unanticipated problems.
The problem with this praise of unpredictability, especially in regards to Constitutional decisions, is that it assumes that we want a system where people never really know whether their actions will be judged illegal and unconstitutional by the Supreme Court-- the world that "moderates" like O'Connor create with "balancing tests" and split-the-baby hedges.

What's wrong with having a clear enough judicial philosophy that most decisions are obvious? Sure there will be a few surprises, but those would be on more obscure issues, not the headline issues that laypeople could easily have their own opinion on.

Instead, the unpredictability that Sunstein praises just creates new litigation in its wake, since no one knows what a related but slightly varied set of facts may yield at the Court. Is it really good for society that we really don't know whether a child welfare office which posts the slogan, Honor Thy Father and Mother, is violating the Establishment Clause?

Why should we respect nine unpredictable Justices each coming to different conclusions based on their own quirky thinking. What about a five-four decision that can seem almost random is there to respect?

Posted by Nathan at July 7, 2005 07:55 PM