Court Rightly Embraced a 'Living' Constitution in Death Penalty Case

That is the headline of my oped in today's National Law Journal, discussing the Court's approach to judicial bias.  Here is the gist:

How should we interpret our Constitution? Is it a living document, to be read in the context of present conditions and current knowledge, or should it be strictly limited by the "original meaning" on the day it was ratified? Although the debate may be unresolvable, the case of Williams v. Pennsylvania, recently decided by the U.S. Supreme Court, provides an almost textbook example of the contrast between the two methods. Justice Anthony Kennedy took a decidedly "living Constitution" approach to the case, while Justice Clarence Thomas addressed the central issue on originalist grounds. The difference was a matter of life or death.

Thomas' extreme version of originalism, which is fixed in an era long before psychology and cognition science emerged as rigorous disciplines, makes progress impossible. If a likely cause of judicial prejudice was unappreciated in the late 18th century, Thomas' jurisprudence would take no account of it today. No matter how much we have come to know about predisposition and unconscious bias, that information could play no part in constitutional decision-making. History, in Thomas' view, trumps science.

Kennedy's approach is far wiser and much sounder, relying on living insights into judicial (and other) decision-­making that were unavailable to the founding generation. Bias, Kennedy observed, is too "difficult to discern in oneself." Thus, Thomas' originalist presumption of nearly absolute judicial impartiality must give way to informed psychology. "When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate," wrote Kennedy, "a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome."

You can read the entire article here.

Comments

[anon]

Lubet, in his zeal to cover his political bias with a thin patina of legal analysis, once again goes after one of his "republican" targets on grounds that bespeak sloppy reading of the source materials and condemnation stretched to the breaking point.

Thomas wrote, of this recusal: "Pennsylvania has set its own standard by requiring a judge to disqualify if he “served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding” in its Code of Judicial Conduct. See Pa. Code of Judicial Conduct Rule 2.11(A)(6)(b) (West 2016). Officials in Pennsylvania are fully capable of deciding when their judges have “participated personally and substantially” in a manner that would require disqualification without this Court’s intervention."

This quite sound observation has nothing to do with the dream-like diversion by Lubet into a false premise leading to a specious assertion (the "originalist presumption of nearly absolute judicial impartiality must give way to informed psychology ...").

Lubet would do better to analyze bias on the part of other members of the court.

[anon]

Post: And, perhaps needless to say, Lubet would do better to analyze his own quite obvious biases.

Could any republican feel comfortable allowing Lubet to be his judge on anything? One wonders how students must feel about someone who seems a.) always eager to discredit others and b.) is so obviously motivated by partisan zealotry, ignoring the same flaws he attacks in republicans in those he excuses based on his partisanship (indeed, excusing his favored group from any scrutiny whatsoever).

This is the epitome of the biased individual. One could uses stronger adjectives. How dare he accuse others of bias, when principle seems to mean nothing to Lubet when the same criticism that he applies to republicans applies to those with whom he agrees on usually the most clichéd political talking points.

And, given the shallow nature of the analysis that usually accompanies these attacks, again, how could students who might mention some phrase in class that Lubet deems to be too "republican" feel comfortable that he would not judge them just as unfairly? If I were a student of his familiar with his writing on blogs, I would be terrified to express any honest opinion about some issue that Lubet might consider contrary to Democratic orthodoxy.