The emotional outrage over the nomination of Brett Kavanaugh to the Supreme Court raised numerous questions about who determines what is right or wrong. Kavanaugh’s defense – superbly satired by Matt Damon on Saturday Night Live – was an equally emotional counter-attack to defend his reputation. After Kavanaugh had passed examination of his legal qualifications, allegations of improper behaviour called into question his personality. Who is Brett Kavanaugh? Should he be a judge on the Supreme Court?
Justice is not a simple concept to grasp. We sense what is right or wrong, but one’s sense of justice may not coincide with someone else’s. How to decide what is just? Who is to decide? There are courts, lawyers and judges just because there are no computer algorithms to render an objective verdict.
Professor John Rawls’s Theory of Justice set off an academic cottage industry in 1971. Rawls tried to set down a set of rules to determine what could be generally accepted as just. Rawls attempted to place justice on an even-handed basis to arrive at some form of consensus based on reasoning more than power or personality.
The logical rules Rawls developed were based on impartiality. He attempted to show that behind a hypothetical veil of ignorance people could be impartial in reaching agreement about what was right or wrong. According to Rawls, the decision-making process could be rational and neutral.
Beyond Professor Rawls’s formalistic veil of ignorance, we all hope that justice will be impartial and neutral. It is in this sense that the rule of law is sacrosanct to liberal politics. The separation of the judicial from the executive and legislative is a fundamental part of any functioning democracy. It is not surprising, therefore, that for over 500 years Lady Justice has often been depicted as wearing a blindfold. The first known representation of blind justice is Hans Gieng's 1543 statue in Berne. Given Switzerland’s historic neutrality, the blindfold is an apt representation of justice’s supposed impartiality.
As Judge Kavanaugh wrote in his article in the Wall Street Journal trying to make amends for his emotional self-defense: “an independent and impartial judiciary is essential to our constitutional republic.”
But at the end of the day, people make decisions, and not blindfolded. Judges decide cases in courts of law. Human beings say what they believe is right or wrong.
Before Rawls’s tome and the Kavanaugh nomination, the famous American historian Henry Steele Commager said in a class discussing the role of the Supreme Court; “Justices go to cocktail parties.” What I believe he meant was that there is always an element of politics in judicial decisions, even on the highest courts. Justices on the Supreme Court, like justices everywhere, are influenced by who they are and what is going on around them. They cannot be perfectly neutral or impartial.
But they should try. In an illuminating article about Justice Ruth Bader Ginsburg in The New Yorker, Jill Lepore quotes the Supreme Court justice during her confirmation hearing on the difference between an advocate and a judge: “We cherish living in a democracy, and we also know that this Constitution did not create a tricameral system. Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians.”
Justices do go to cocktail parties. (Hopefully they don’t drink too much beer.) The rule of law depends on human judgment. The judgments must somehow go beyond prejudices or intuitions. The judges must strive to be impartial. There is a reason why Lady Justice is so often positively depicted as being blind.
Is justice ever really blind? Can countries or organizations be truly neutral or impartial? Switzerland’s neutrality, for example, like the declared impartiality of the International Committee of the Red Cross (ICRC) is very complex. A Swedish diplomat once explained to me that “Neutrality is the foreign policy of a small country surrounded by large neighbors.” That is the political reality behind the declared ideal of neutrality.
Rawls’s vision of a veil of ignorance, like the blindfolded Lady Justice or the ICRC’s impartiality are ideal types impossible to actualize in the real world. But that doesn’t mean justices shouldn’t try to be impartial. The law is always unfolding towards the ideal. Justices may go to cocktail parties, but we count on them to be more than sober when they make their decisions.
Kavanaugh’s confirmation process showed the tension between the actual and the ideal. The process removed any veil of ignorance. It revealed Kavanaugh, warts and all. Based on what we saw, we can no longer say that in Kavanaugh’s case Lady Justice is blind. Judges do go to cocktail parties, in his case rowdy beer parties. And no letter in the Wall Street Journal will erase what we saw during Kavanugh’s self-defense. We saw who Kavanaugh really is, someone incapable of striving towards the impartial, neutral ideal of justice.