In other words, the swing votes here, Chief Justice Roberts and Justice Alito, may have voted for a liberal social policy because of a conservative method of statutory interpretation. Yes, the end result is to expand the social safety net for women. But the reason that result was reached was because of a close, conservative reading of the statute in question.


Anonymous said...

One of the fundamental principles of legislative interpretation is that Congress knows how to express its intent in writing. I understand that the writer of the article, and no doubt many readers, may think that judges interpret law based on their own prejudices. That would be a shame, if true. But, it really is not true.


E Hines said...

Indeed. Judges, judges who are true to their oaths of office, decide if the law is legitimate--constitutional--and if so, they apply it as it is written.

Don't like the outcome? The problem is not with the court but with the law, and only we, through our elected representatives can make law or change it.

Eric Hines

Texan99 said...

The author is making hard work of what seems pretty straightforward to me: if Congress passes a law prohibiting discrimination against pregnancy regardless of intent, then pregnant workers don't have to prove intent. The Court doesn't have to like the law to uphold it.

Like the author, I understand Alito to have been signaling very strongly the message, "This result applies only when Congress adds these magic words. I'm still likely to rule against plaintiffs who try to drag disparate impact into run-of-the-mill discrimination cases." Unlike the author, I don't find that shocking.

Tom said...

... many readers, may think that judges interpret law based on their own prejudices. That would be a shame, if true. But, it really is not true.

Interesting. I actually do believe some judges interpret law based on what they believe the best outcome to be, rather than what the law says. I think the living constitution theory supports that way of interpretation. While it sounds reasonable, I think it allows and even encourages judges to interpret laws based on their own prejudices.

Texan99 said...

Proponents of the "living constitution," having abandoned law and precedent, haven't much else to fall back on. But when they assume that strict-constructionist judges do the same thing, they reveal only their ignorance.

Cass said...

Eric Posner wrote a book a while back (I have a copy of it somewhere) in which he argues that all judges engage in outcome-based jurisprudence. He believes most judges decide on the outcome they like first, then find an argument to rationalize it (hopefully one that aligns with their core beliefs).

I'm not quite that cynical yet :p

I think it's more likely that the differing weights people give to sometimes conflicting principles plays a big part.

Tom said...

Posner may be right, and it could be that it's mostly a subconscious process. I think that's probably how most people live their lives.

However, the 'living constitution' theory gives more left-leaning judges intellectual permission to do so, while more conservative theories of interpretation get in the way of that and should at least make a judge hesitate and think a bit more before doing so consciously.

Tom said...

Cass, which book was it? Do you remember? I wonder what kind of evidence he provides. Maybe my idea about conservative judges being more restrained is wrong.

Texan99 said...

Many (I wouldn't say all) trial judges operate this way: a seat-of-the-pants judgment about the most just result, followed by a search for a legal excuse to get there. But even at the trial level there are judges with principles, and at the appellate level only the hacks take this approach. Appellate judges are called on to leave alone the results below unless there are quite well-understood reasons to overrule it; those reasons do not include their personal preference for a different result. What is true of all appellate judges is especially true of the Supreme Court.

However, even for a very principled judge, there are many situations in which the language of the existing law or the Constitution is completely inadequate to answer the question, and general principles must be consulted. Judges of different stripes have very different principles that they bring to bear in those situations, so it's not surprising to see a huge difference in approach depending on political or judicial philosophy.