Carol Platt Liebau: "Right" and "Wrong" Legal Outcomes

Sunday, October 23, 2005

"Right" and "Wrong" Legal Outcomes

Thanks to Andrew over at ConfirmThem for this post (referring to this post) -- which, having been out of town since Thursday and therefore only blogging quickly in fits and starts -- I just had an opportunity to see.

Just wanted to clarify that, as Andrew suspected, I am indeed referring to legally "right" outcomes, as opposed to those that are morally "right." However inartfully the passage was phrased, I had in mind the times when Justices Scalia and Thomas have reached the same, legally correct result by different jurisprudential routes (for example, the latter coming at a question from a "natural law" perspective, the former from a "deference to the legislature" approach). In a particular instance, I might find one or the other's legal reasoning more or less persuasive in a given case -- and that was my point. If a Justice Miers is capable of reaching the legally correct result, but does so through reasoning that I find less than persuasive or even downright wacky, that's suboptimal.

But it's better than her being able to demonstrate a real facility for legal "brilliance" like William Brennan's -- where the reasoning was impressive from the perspective of, say, a "legal realism" approach to jurisprudence, but the results (though derived ineluctably from the reasoning) dead wrong from a legal perspective.

Or, take as an example the medical marijuana case from last Term -- where the Court ruled that Congress's authority to regulate the interstate drug market reaches even small, homegrown quantities of doctor-recommended marijuana . As a policy and political and "moral" matter, I largely agree with the outcome. And even George Will would be hard pressed to find fault with the legal reasoning of Justice Scalia's concurrence with the majority comprised of Justices Stevens, Ginsburg, Souter, Kennedy and Breyer. But even so, the dissent penned by Justice O'Connor on behalf of herself, the Chief Justice and Justice Thomas strikes me as more persuasive from a "legal" standpoint. Seems to me this case is another example of how one can find "excellent" reasoning that nonetheless leads to an incorrect result -- and also an example of how one could, as a judge, find onself forced to rule against the outcome one prefers as a "moral" matter (i.e. the majority result in the medical marijuana case), because the Constitution seems to require a contrary conclusion (i.e. the dissenting view in this case).

Obviously, if one were talking about preferring "morally" right outcomes and judges that will use any kind of reasoning to reach the outcomes they prefer, then you're in the world of results-based jurisprudence, precisely the kind of wrongheaded approach to judging that conservatives have rightly criticized Democrats for for years. That was not my intent. And it's an object lesson against trying to blog on the fly.


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