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On an article on viewpoint diversity in the Law at the University of Chicago. Sunstein Viewpoint Diversity
Growing up I believed according to American mythology that the law is blind. Everyone knows of the Blind Justice Statue of the Roman Goddess Justitia. This always implied to me (perhaps being an engineer) that the law was like math 2+2 =4. Word x+y has meaning Z. The whole idea that adding a bunch of words together lacks a definable meaning to me makes no sense. Law shouldn’t have theory. It should be math especially if it is going to be blind and not swayed by public opinion. There should be no theory involved. I guess this makes me a textualists. But it turns out at places like UC that you have 10-20 smart clusters of people who all have different solutions to 2+2 = 4.
Law being like math I believe should definitely apply to judges. Legal theory can be useful for a lawyer who works for a Senator who is writing legislation. Then legal theory has a purpose of designing the equations to get a law that does what you want.
One thing that came out of UC was applying economics to law. This again I have no problem with adding economics to new legislation you create. But from my understanding of legal history judges began adding economic tests to old law. To me this is like discovering that 2+2 had a different answer than the 4 that was a correct answer.
Once I realized the law as practiced is not mathematics I switched my judicial philosophy from some form of originalism to Ketanji Brown theory. I just want a judge who votes the way I want her to and do not care if she’s worse at arguing her theory than another guy. The best I can tell from history is that when public opinion on an issue changes the legal theorists of the smart guy at UC becomes the theory everyone else begins to quote. I prefer to just pick judges who back the policy I want in the current legal environment.
Pragmatically the law has never been blind. The criminal justice system has always judged poor dumb kids differently than rich smart kids. The same crime committed by an urban youth versus a Kennedy kid has never been punished the same way. A big reason for this is the court had a reasonable expectations that the Kennedy’s had the resources to deal with the behavior internally and society didn’t need to spend resources to make sure the crime didn’t happen again.
Perhaps historically true, but in modern times it is horribly false. At the outset, modern poor urban youth are now much more lightly policed than suburbanites. Drinking or smoking weed in public is just not payed attention to by urban police forces, same with minor property crime. So they are simply not being arrested for misdemeanors that the suburban kids would be. And as a result they also aren't picking up possessory felony charges for drugs or guns. Then at the court level the prosecutors offices in urban situations have much larger caseloads so they offer much more favorable plea deals. A felon with a gun in the city might get offered 3 years while in a suburb he would be lucky to get 7. This also means that if there is a trial less resources are dedicated to the prosecution than would be in the burbs. In a suburb, good luck with an officer forgetting court for even a misdemeanor DUI. In cities, officers miss court dates for felony burglary and robbery cases because they are responding to a more serious offense, or maybe had a 24 hour shift and dont feel like it. Finally, the judges in urban areas are nowadays progressives that, even after a trial, err towards imposing a sentence near the mandatory minimums. In the burbs, you are looking at a maximum sentence if you lose a trial.
But the general rule that the law is not perfectly blind is very true. The other day a cop was murdered by someone who was released by a judge for Armed Hijacking a few days before that. You know not a single judge was releasing someone who did a gun crime THAT day.
It's still true that the Kennedy kid will get off scot free. It's just that there are three relevant classes, not two -- the underclass, which is typically lightly policed and lightly punished, unless they commit a crime against the top class. The massive middle, who are controlled largely by the fact that even a minor conviction can severely limit them (e.g. by denying them professional licenses or certain careers; if you've ever been busted for shoplifting you can never work for a financial institution, for instance, and if you've ever had a DUI conviction most jobs involving driving are off limits) and a major one tosses them into prison and permanently into the underclass, for which they are not prepared and will probably suicide or die of misadventure shortly after. And the top, who can escape consequences with a word to a prosecutor or a judge, except if they lose some power game with others on top quite badly -- though they may even survive that, like Martha Stewart.
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