Once upon a time, I taught college courses in business law. One textbook I reviewed–but didn’t use (and sorry, I can’t remember the author’s name)–had a wonderful section on the Supreme Court. What I remember from that section was a rather brilliant idea that stuck with me over the years. Here’s the gist of it:
When a case make its way to the Supreme Court, the law on that subject is obviously hard, if not impossible, to interpret. (If the law had been easy to interpret then the case would have been decided at a much lower judicial level, or no lawsuit would have been necessary at all.)
So, if the law on a given subject is susceptible of multiple interpretations, what tools are available to the Supreme Court justices when they decide which interpretation to support? They can’t just look at the law itself, because, as we have just observed, the law in this area has already baffled judges in lower appellate courts.
According to the textbook, what Supreme Court justices do–even when they don’t know they are doing it–is to fall back upon their own personal moral values. And, according to that particular book, there are exactly four moral values these justices use: equality (aka fairness, equity, justice), personal freedom, efficiency, and national security. How much weight the majority of justices puts on each of these values determines whether their decisions will take on a “liberal” or “conservative” slant.
Supreme Court justices who put more weight on equality than the other three values tend to gain the reputation of being liberal. In a given lawsuit, they are interested in whether minorities and women are being treated in a manner that is equal to that of majorities and men. They might also prefer legal outcomes that favor personal freedom, but only when the freedom being sought is not at the expense of a vulnerable class of citizens. They are less interested in efficiency and national security, partly because they take it for granted that the United States is the richest and most powerful nation on earth. What’s a little inefficiency or national risk if it leads to greater levels of justice and personal freedom?
Supreme Court justices who put more weight on efficiency and national security tend to gain the reputation of being conservative. They might also prefer legal outcomes that favor personal freedom, especially when this freedom involves individual citizens complaining about the excesses of government. They are less interested in equality, partly because they view government equal-opportunity programs as inefficient, and they take it for granted that the “playing field” in the United States is already level enough for those willing to work hard. They do not take it for granted that the United States is either rich or powerful and, in fact, worry that our nation’s national security is being eroded from within, leading to a collapse like that of the ancient Roman Empire.
Note that personal freedom might be viewed as an important value for either the liberal or the conservative judge, depending on the nature of the lawsuit.
My takeaway from this analysis was that if you are an attorney pitching a case to the Supreme Court, or even to a lower appellate court that appears to be having trouble interpreting a particular law, you should use these four values as touchstones in your argument. If you think your judges happen to be liberal, look for ways to work concepts of equality into your argument, perhaps with a dose of personal freedom. If you think your judges happen to be conservative, stress how your client’s case is important for efficiency or national security.
Whenever you read a Supreme Court opinion, try looking for the four values of equality, personal freedom, efficiency, and national security to see which one(s) the majority seemed to prefer.