Constitutional Law

Approaches to judging a case

Over at the Volokh Conspiracy Orin Kerr has a link to an interview of a prof. who clerked for Justice Goldberg on the Supreme Court, in the early 60s. One passage caught my eye:

"Working for him was an eye-opening experience. His first question in approaching a case always was, ?What is the just result?? Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of ?neutral principles? that you could apply to get the proper result..."

I have no problem with a trial judge seeking a just result. Nor with an appellate judge seeking a just result within the law... construing a statute so as to accomplish a fair rule, if only because the legislative body probably intended that. But I do think it questionable to make that the entire purpose, and then working backward to make the law or Constitution conform. My idea of fairness differs from that of everyone else (e.g., having grown up as a construction worker's son, you can guess my idea of fairness in employer/employee relationships), and should not be able to override the Framers, or the legislature's, idea of fairness.

Full post as published by Of Arms and the Law on April 19, 2008 (boomark / email).