People who work with me know that, for almost twenty years now, I’ve had one big, across-the-board complaint about judges — they don’t follow the law. My experience, which is fairly broad, is that while many (although not all) judges will pay lip service to the law, the fact is that most (although not all) will ultimately decide according to their own standard of right and wrong. You see a lot of this in the Bay Area, where liberal judges simply can’t square it with their conscience to turn their back on people who don’t have a legal leg to stand on, especially if those people are suing banks or corporations.
It’s always seemed to me that judges believe that, when they don their black robes, they become a direct conduit to some perfect form of justice that only they can divine, and that is unfettered by such mundane concepts as stare decisis and statutes. Their personal believes — especially if they’re liberal jurists — always trump the need for reliability that is the backbone of a functioning legal system and, by extension, a functioning capitalist society.
As always, I’m not the first to arrive at this idea, and I’m not the one who says it best. This time, courtesy of a David Limbaugh column about the Supreme Court’s overreaching in Hamdan, I learned about Scalia’s concerns that judges believe they are unfettered by the rule of law:
When learning of this [the Hamdan] decision, I was reminded of the words of Justice Antonin Scalia in a speech on the growing (and disturbing) influence of international law on our Supreme Court jurisprudence. Scalia’s words, even more than his brilliant dissent in this case, contain the key to understanding the mindset of the Hamdan majority.
Scalia said that judges inclined toward the “living Constitution” approach think “there really is a brotherhood of the judiciary who indeed believe it is our function, as judges throughout the world, to determine the meaning of human rights. And what the brothers — and sisters — in one country say is quite relevant to what the brothers and sisters in another country say. And that’s why I think if you are a living constitutionalist, you are almost certainly an international living constitutionalist.”