Today's article by Carol Platt Liebau is correct in one regard, the selection of justices for the Supreme Court should not be based on "empathy" or "concern for the plight of the working man", but Ms. Liebau falls down when trying to explain why. Like many conservatives, she tends to argue in terms every bit as vague as Obama's campaign rhetoric, terms which resonate with conservative readers, but which, just as easily, could eb turned to argue the other side. Vague rhetoric, while ti fires up the base, often opens the possibility of a reversal like the one we saw in 2008, when the high sounding words were turned against us from the other side. Fortunately, in this case, there is no reason to resort to rhetoric or empty terms, there is an argument which is both a hard-headed "pragmatic" argument, as well as one with a sound theoretical basis.

First, let us look at Ms. Liebau's argument. She starts off well enough, arguing that Obama's "empathy" hides a dedication to a specific agenda, even skirts a better argument by mentioning that a justice is supposed to impartially uphold the rule of law, but then she runs off the beam. She starts to argue that an ideological jurist, one committed to legislating from the bench, will be committed to seeing one specific outcome and that this will be contrary to justice. It sounds nice, but in practice, the argument from 'justice" is a losing proposition.

How so? Don't we all agree that "justice" is a desirable aim? And don't we all know that justice means an outcome that is fair to all parties? And that is precisely where things fall apart. As the left's use of "economic justice" as an all-purpose rubric for all manner of socialist interventions shows, the term "justice" can mean pretty much anything. Because justice demands a "fair" outcome, and because "fair" is equally ill-defined (think "Fairness Doctrine"), the whole concept of "justice" and "fairness" can be used to argue any position one desires. Just look at how "fair" can be used to argue for the free market* or protectionism and you can see how a meaningless word can be used to argue any position.

Fortunately there is a better argument, and one which does not rely upon any vague terms.

The main advantage of the "rule of law", the reason we rely upon written laws and constitutions, is that predictability is the cornerstone of civilization. We could easily have created courts which relied upon no written laws, which instead enforced nothing but the "just" outcome or the outcome in "society's best interest", but we did not.** Why not? Because such a system would make it almost impossible to avoid breaking the law, and thus would make planning impossible.

Planning?

Yes, planning. Planning is the most basic requirement for a civilized existence. Without the ability to plan, we might as well give up our society. If we can't predict that doing X will result in Y, or will result in A,B, or C with relatively consistent probabilities, then we are living in total chaos. Society, by providing a common framework of behavior and laws allows us to predict not only what our own behavior will bring about, but how our neighbors will behave, how they will respond to our behaviors, and how the law will view our actions. That predictability makes it possible for us to live with thoughts beyond the immediate moment. It allows us to save, to plan for new enterprises, to make long term investments, to provide for our children, even our grandchildren, to establish businesses, universities, charities, institutions that will last centuries. Without that predictability, we could do none of those things.

And that is what "empathy" threatens.

Despite Ms. Liebau's statement that "empathy" would result in decisions consistently favoring one side, which is true, that sort of "consistency" does not enable us to make long range plans. A law which says "the union always wins", for example, seems consistent, but in practice makes it impossible to know what the outcome of any given act will be. Why not? Because we cannot know in advance what a union will or will not oppose, what side they will take. In short, it places all our future outcomes at the mercy of the union's whim. So, rather than examining a body of laws and making our plans based on their plain meaning, we have to, instead, try to anticipate what the union will do in the future, and base our plans upon those guesses.

As an aside, this is also the reason that I agree with those jurists in the 19th century who argued "ex post facto" prohibitions in the Constitution applied to civil as well as criminal laws. If something is legal today, then my plans are based upon those assurances. If I rent a building on a 99 year lease, predicated on the sale of alcohol being legal, and then next year the legislature limits the number of bars int he city, making my business illegal, I have lost 98 years of future business because of the whim of the legislature. However, if we extend ex post facto to civil law, or apply the later theory of "substantive due process", which was an alternate theory producing very similar results, then the state would have to avoid such laws, or, at the very least, provide some sort of "grandfather clause" to protect the interests of those who relied upon previous laws.

But we can see the way this emphasis on judicial legislating, rather than consistency, has changed our society. I mentioned it in the last paragraph. When was the last time you heard of anyone taking, or giving, a 99 year lease? At one time they were common alternatives to outright purchase, but no longer. Nor is that the only instance. All around us, we see the time horizons of businesses and individuals shortening. Where once "long term" meant 20 or 50 years, even longer, now it often means 10 or even 5. Admittedly, some of this unpredictability is due to inflation and the economic instability it introduces, but that uncertainty is only part. The remainder is due to the uncertainty our government creates with its inconsistency, both on the judicial and legislative sides.

When the courts can make your business illegal, confiscate your profits, even jail you for something that was not illegal the moment before the trial started, what sort of planning is possible?

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* Yes, I did use the term "fair" in my post. And in retrospect I should have been more careful. However, as I was using it rather casually, I don't think it necessarily undermined this particular argument. I didn't argue the free market should be "fair", I was pointing out that by most normal definitions the free market is "fair". So it is a bit of a different case.

** This is not entirely true. Our equity courts, which grew out of the English Chancery Courts, based judgments on, well, equity. Presently most states limit equity to probate, child welfare, custody and similar matters (sometimes juvenile justice as well, depending on the state -- though all pay at least lip service to the "best interest" line, some tend to work more like adult justice, some more like equity courts). And you can see in those cases how badly such principles work. When custody is based on "the best interest of the child", how can you predict what will happen? Especially when so much rests upon the opinions of the judge it is almost impossible to predict what will happen. Would you like to see contract disputes, or criminal justice, decided in a similarly arbitrary way? With more importance attaching to the judge's personal beliefs and less to the law? That is what judicial activism, or "empathy", means.

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POSTSCRIPT

I have written on the topic of predictability many times:

In Praise of Slow Changes
Predictability
The Problem With Cultural Relativism
The Shortcomings of Pragmatism
The High Cost Of Protection
The Problem With Evolving Standards
England Becoming a Third World Nation
Why Judicial Activism Hurts
Interpretation and Activism
Pragmatism Revisited
Shaky Reasoning
Expectations
Conservatism, Incremental Change and Federalism

I also mentioned the negative consequences of unpredictability (in terms of the consequences of inflation) in my post "Inflation and Uncertainty", and described the consequences in "A Thought on the Clinton Surpluses", "Place Blame Fairly, Regardless of Party" and "Shopaholic Government".

POSTSCRIPT II

For some interesting reading on the many arguments advanced to maintain individual economic liberties over the course of US history (including "ex post facto" arguments), I would recommend Economic Liberties and the Constituion by Bernard Siegan. It appears there is now a second edition, which has been quite extensively rewritten. Since I read only the first edition, I don't know if the new one is as good as the original. However, knowing the author's beliefs, I don't think he changed it enough that I should not recommend the new edition.

POSTSCRIPT III

What amuses me is that many commentators talk about the "fast pace" of modern investment, and the uncertainty of today's business environment, and draw the conclusion that it is somehow tied to "technology" or the "global environment". They never once think that all the uncertainty introduced by inflation, as well as the many shaky legal environments, both in the US and abroad, are the reason for this frenzied, insecure environment. Where in the 19th century we still had a fully "global" economy, we also had a gold-backed currency and a British-dominated world economy, which ensured relatively business friendly environments in many overseas markets. Perhaps all our activity today has nothing to do with technology and a lot to do with the certainty and stability we sacrificed to chase after "empathetic" laws and "managed" currency?