Legal Theory Blog

Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski

Introduction.
Read Edward Lazarus’s findlaw column on judging. Lazarus has a fascinating take on the question: what constitutes the virtue of judicial integrity? Along the way, he touches on the role of political ideology in judging, the Second Amendment to the United States Constitution, and the confirmation wars, and the Alex Kozinski. I am quite sure that both Lazarus and Kozinski will be quite cross with me if they read this post. Why don’t you come along for the ride and we’ll see where we end up? Jeff Cooper: You can put those exams to the side for a few minutes. You’ve been cooped up for long enough.
Kozinki on the Ninth Circuit’s Second Amendment Jurisprudence
Lazarus starts with a recent dissenting Second Amendment opinion by Judge Alex Kozinski (actually a dissent from denial of a petition for rehearing en banc in Silveira v. Lockyer, a Ninth Circuit decision which rejected the individual rights view of the Second Amendment (which has been adopted by the Fifth Circuit in United States v. Emerson). This is a remarkable dissent. Here is the beginning of Kozinski¡¦s very pointed dissent:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or … the press” also means the Internet, see Reno v. ACLU (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington (9th Cir.1996) [reversed]. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon–a sawed-off shotgun–was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

I will come back to Kozinki’s opinion a bit later, but I want to make one thing clear at the outset. Kozinski is surely right that Miller cannot be cited for the proposition that the plaintiffs in Second Amendment challenges to gun control legislation lack standing. If that were the case, then the reasoning in Miller was incorrect, but the Ninth Circuit is simply not free to say that the Supreme Court precedent it cites as most authoritative was wrongly reasoned.
Lazarus’s Interpretation of Kozinski
So how does Lazarus characterize Kozinski’s opinion? Here is how he starts:

Here, Kozinski has given his take on some of the most vexing questions of constitutional interpretation: What role should a judge’s ideology play in legal interpretation? How does a judge avoid reading his “personal preferences” into the Constitution?
In addressing these issues, Kozinski surely must be commended for moving beyond the usual claptrap. It’s standard fare for politicians and judicial nominees to try to deny that personal views play a significant role in judicial decision-making. The political rhetoric on the issue of judging is filled talk of setting aside personal views when deciding cases and applying “neutral” principles of judging. Yet with one snip of his rhetorical scissors, Kozinski has let the cat out of the bag: neutral principles are an illusion.

Whoa Nelly! What just happened? Kozinski complains that the majority is inconsistent, reading the Second Amendment in a fashion contrary to the manner in which the Ninth Circuit has read other individual rights provisions of the Constitution. But then Lazarus cites this passage as evidence that Kozinski believes that neutral principles are an illusion? What on earth could Lazarus mean? Let’s consider the possibilities:

–Lazarus might be claiming that Kozinski is arguing that neutral principles are impossible. If so, Lazarus’s argument is radically defective. Consider an analogous argument. Ben says that Alice was wrong to break her promise. Alice replies that Ben has just admitted that promise-keeping is impossible.
–Lazarus might be claiming that Kozinski is arguing that some judicial decisions do not rely on neutral principles. If so, then Lazarus’s argument is correct and fair as an interpretation of Kozinski, but then his conclusion “with one snip of his rhetorical scissors, Kozinski has let the cat out of the bag: neutral principles are an illusion” is a gross distortion of the import of his argument. Why? First, because the possibility of unprincipled judging was never a cat in the bag to be let out by a snip of rhetorical scissors. No one has ever claimed that all judges are always principled; no one who would read Lazarus¡¦s column is a school child who would believe such a obviously false claim. Second, the phrase, “neutral principles are an illusion,” is, at best, a misleading way of stating that some judges do not adhere to neutral principles. I don’t know what Lazarus meant to say, but what he did say doesn’t hang together.

Applying the principle of charity, let’s assume that Lazarus exaggerated for rhetorical effect. So, let’s put the “neutral principles are an illusion” point to the side for now.
Indeterminacy?
And things get even stranger. Lazarus continues:

Implicit in Kozinski’s description of the judicial process is the unavoidable truth that the meaning of most constitutional provisions is indeterminate. Put another way, conscientious judges, applying typical canons of interpretation, can read the Constitution in a variety of ways. Thus, as Kozinski tells us, libertarians can reasonably read the Constitution one way, while statists read it another.

Let’s pause for a moment here. Lazarus seems to be advancing some version of the indeterminacy thesis–a claim associated with the critical legal studies movement. But this thesis–that any interpretation of a given legal text can be legally correct–is one of the most discredited ideas in the history of contemporary legal theory. At most, we might say that some provisions of the constitution are relatively underdetermine (ruling out some results but allowing a range of a plausible interpretations). Once again, let’s put this point to the side.
Some Does Not Imply All
Lazarus continues:

Acknowledging this truth reminds us exactly why the Senate is absolutely right to be scrutinizing with such care the personal philosophies of President Bush’s judicial nominees. As Judge Kozinski reveals, constitutional interpretation as currently practiced by judges of every ideological stripe is a result-oriented enterprise in which a judge’s personal philosophy is the touchstone of decision-making.

This paragraph makes an argument that is clearly fallacious. It is of the form:

There is an x, such that x is P.
Therefore, all x’s are P.

In other words, “One judicial decision departed from neutral principles. Therefore, all judicial decisions depart from neutral principles.” This argument commits a logical fallacy. I am not sure what argument Lazarus meant to make, but the one he did make was just plain bad. But it gets even more interesting. Lazarus continues:

The important question is not whether judging is political – it is – but how a judge can also ensure that he or she is a person of principle, as a judge, and not merely one of politics. If judging is political, what does integrity in judging mean?

The Question of Judicial Integrity
And this is a great question! Before we continue with Lazarus, let’s back up and think about the history of contemporary legal thought. The question of judicial intergrity is just one of many that were problematized by disturbing implications of American legal realism. How can a judge have integrity if law is politics? The phrase “neutral principles” comes from Herbert Wechsler, one of the key architects of the legal process school that dominated the legal academy in the fifties and and early sixties. Here is the idea. If you replace formalism with instrumentalism, then it looks like law is just politics. But this is not necessarily the case. One can imagine a constrained role for ideology in judicial practice. Instrumentalist judging can be constrained if judges are willing to adopt neutral principles as the animating purposes. A judge who decides on the basis of neutral principles will stick by her guns, even when her principles lead to results she doesn’t like. And of course, this brings us back to Lazarus and Kozinski. Judge Konzinski accused the majority of failing to adhere to neutral principles and Lazarus then says, in effect, “Well, therefore, there can be no neutral principles.” So, for the moment, let’s assume that Lazarus is correct. Let’s grant him the claim that neutral principles are an illusion. What follows?
Ideological Integrity
Back to Lazarus. We pick up where we left off. Lazarus is now giving us his take on Kozinski’s view of judicial intergrity:

Kozinski gives one answer: He suggests that a conscientious judge can indeed avoid the unprincipled over-imposition of “personal preferences” on the interpretive process. All that is required, Kozinski instructs, is to interpret the Constitution with a slavish consistency to one’s overarching philosophical commitments. Thus, he admonishes that libertarians must always stick to libertarian interpretations, and statists, to statist ones.

And skipping forward just a bit:

Ideological consistency is actually a formula for entrenching personal preferences into judicial decisions. After all, what is an ideology or “jurisprudence” such as statism or libertarianism other than an elevated and systematized collection of “personal preferences”?

This line of argument is astoninishing. Lazarus has just argued that the “neutral principles” approach is an illusion. Now he seems to be assuming that it is perfectly plausible that judges might “interpret the Constitution with a slavish consistency to one’s overarching philosophical commitments” but that this would be a very bad thing, because undermine rather than reinforce the rule of law. It looks to me like Lazarus has contradicted himself, but we can easily fix up his argument. Let’s assume that Lazarus argues this as a dilemma: either neutral principles are impossible, or they are possible, but adherence to them would undermine the rule of law. But the second horn of the dilemma is nonresponsive to Kozinski. Let me reconstruct Kozinski’s position: If judging is instrumental, then it will better serve the rule of law if judges decide on the basis of general principles (as opposed to ad hoc) judgments. The majority in Silveira v. Lockyer departed from their general principles. Therefore, the majority in Silveira undermined the rule of law. Consistency at the level of general principles is, in fact, more consistent with the rule of law than is ad hoc decision on the basis of political ideology applied to particular disputes. Lazarus’s criticism simply does not touch Kozinski’s position. Of course, this does not mean that there isn’t some other approach to judging that would serve the rule of law better than general principles instrumentalism.
Methodological Integrity
And that brings us to Lazarus’s own vision of judicial integrity. Here are the crucial passages:

[A] far better measure for principled judging is methodological – not ideological – consistency.
Judges have available to them a variety of legitimate interpretive doctrines for giving meaning to the Constitution. One such method is originalism: looking to the Framers’ intent insofar as it can be ascertained (always a problematic task). Another is textualism: Stressing the words of the Constitution, or a given statute, on the ground that they are the law to which all who were present agreed.
Some judges always look at legislative history; some never do. Some cite the Federalist Papers; some rarely do. Some look more closely at what their brethren think; some try to chart their own course. Some are steeped in constitutional history; some believe the Constitution needs to be dramatically updated for the modern world. All these different methods have very concrete consequences: What sources do judges stress? How much weight do they give them?
In my view, that is fine: Judges are entitled to choose their interpretive methods. But once they do, they should stick with it, unless they are convinced another is superior, and if so, they should stick with that.

When I read this passage for the first time, I literally fell off my chair. Just paragraphs earlier, Lazarus trotted out the indeterminacy thesis. Now he is arguing that there are general methods (textualism, reliance on legislative intent, original meaning) that constrain judicial decisions. Wow! I am flabbergasted. I just don’t know what to say. What on earth could be going on here? I don’t think Lazarus is trying to pull the wool over our eyes. His argument is not clever enough for that. Rather, I think Lazarus must somehow be blind to the obvious contradictions in his own position. And I suspect that this kind of blindness is actually quite common.
Asymmetrical Perceptions and Cognitive Malfunction
Because it is my suspicion that most of us see the flaws in other’s arguments more readily than we see the flaws in our own arguments. I suspect that many on both the left and the right believe that thier own positions are more or less consistent (both at the level of ideological principle and at the level interpretive methodology) while simultaneously believing that most of their opponents are inconsistent on both scores. This is related to the well-known psychological phenomenon of cognitive dissonance. I have friends on both the left and the right. Many of my left-wing friends believe things like: “Repubicans are all greedy. Members of the Federalist Society are part of a conspiracy to take over the federal bench. Originalists only pay attention to the historical evidence when it suits their ideological purposes.” And many of my right-wing frineds believe things like: “The Democrats’ chief objective is to use the power of government to steal from those who work hard to pay off Democratic interest groups. Left-wing judges deliberately ignore the law in order to carry out a political agenda they know could never succeed at the ballot box. Left-wing legal academics will adopt any theory that supports thier ideological objectives, and then disregard it in their very next article if it proves inconvenient.” And guess what? When, from time to time, I ask members of each group about these asymmetrical perceptions, they say: “I know that the other side says they believe those things about us, but that’s just rhetoric and propaganda. But they really are evil or maybe just stupid.” You know I’m not exaggerating. I’ve heard words very much like these, over and over again. Of course, there are exceptions on both sides of the ideological divide. And those who are able to see the flaws in their own beliefs have an important virtue–intellectual integrity. They are willing to put their own beliefs to the same tests they put the beliefs of their opponents.
Judicial Integrity: Consistency is the Minimum
And I would argue that there is a lesson here that applies to the question: what is judicial integrity? Let me suggest that the minimum condition for judicial integrity is consistency. Different judges have different judicial philosophies. Some believe that the constitution should be interpreted instrumentally, to serve certain fundamental values. Others believe that the constitution should be interpreted formalistically, by following precedent when it is available, reading the text for its plain meaning if that is possible, and relying on history to resolve the gaps and ambiguities. At a minimum, judicial integrity requires consistency in judicial philosophy. If interpret instrumentally, relying on general principles, then do that across the board–even when you don’t like the results. If you follow the original meaning as a general rule, then don’t depart from it because you don’t like the original meaning of a particular provision. Judges on both the left and the right have been guilty of inconsistency, and in my opinion, inconsistent judges are bad judges–whether or not I like their politics.
Judicial Integrity: Fidelity to Law and Concern for its Coherence
Judicial integrity as consistency is a thin theory of judicial integrity. Only those who deny the possibility of consistency or the value of integrity itself would challenge this theory. But a more robust theory of judicial integrity is available. I have argued elsewhere that the key judicial virtue is the virtue of justice–the disposition to decide cases on the basis of the law rather than on the basis of whim, favoritism, or political ideology. This is a relatively thick theory of judicial integrity, because it assumes a particular conception of the virtue of justice. Now here is the odd thing. I find Lazarus’s critique of Kozinski to be radically off the mark–it is filled with sloppy argumentation and contradicts itself at several points. But I agree with Lazarus’s bottom line. Judges should adopt a set of general principles (libertarian, statist, communitarian, liberal, whatever) and then read the constitution so as to realize the principles they endorse. Judges should be trying, as best they can, to figure out what the constitution means as law. That means that first and foremost judges should follow the rules laid down. Even the Supreme Court should regard its own precedents as binding, unless there is a compelling reason to do otherwise. We’ve been speaking mostly of constitutional law, so I will limit myself to that topic by way of illustration. When the precedents run out, judges should look to the plain meaning of the constitutional text. When the text of a particular provision is ambiguous, judges should look to other provisions and then to the structure of the Constitution as a whole. And if ambiguity persists, judges should make a good faith effort to determine the original meaning. And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law.
Back to Kozinski
So in the end, it turns out that I disagree with Kozinski. The fact that a particular judge construes the freedom of speech broadly does not entail that that judge should read the right to bear arms broadly. It depends on the precedents, text, structure, and original meaning. Kozinski’s bottom line was off the mark. But on the other hand, Kozinski’s criticisms of the majority in Silveira v. Lockyer were on the money–it was a badly reasoned opinion. I am no expert on the Second Amendment, but I have followed the debates with some care. I suspect that Kozinski is right on the merits as well–although I could easily be persuaded otherwise upon a serious reexamination of the evidence. As I said at the outset, I doubt that either Kozinski or Lazarus will like what I have to say. And isn’t that interesting?

Update: Jack Balkin replies here. And I offer A Neoformalist Manifesto in response to Balkin here. And see Matthew Yglesias here.