Tuesday, August 16, 2011

Courts are Different

Last week I had the pleasure of accompanying UT School of Law Dean Larry Sager to the Legislative Summit in San Antonio, the big annual conference by the National Conference of State Legislatures. (As readers know, I am very involved with the National Center for State Courts; well, back in "the day" when I was a legislative staffer [late 80s], I was very involved with NCSL, and last week I was very pleased to run into my NCSL mentor, Betty King, Secretary of the Texas Senate for 24 years.) 

Dean Sager spoke about the Supreme Court and the litigation over the Health Care Reform Act in the context of our federal constitutional system.  Very interesting, but what gratified me most was the background he provided to the audience of legislators, describing a couple of important distinguishing features of courts, in contrast to legislatures. He first pointed out a source of national pride, that most countries in the world have joined with the American concept of a written constitution, interpreted and applied by judges.  The powerful and distinguishing feature of courts in our common law system is that they explain the reasons for their decisions, in writing. This exercise entails looking at precedent - the way that similar cases were resolved in the past - and thinking about the precedent being set for the future. This process, and the mental exercise of reaching "reflective equilibrium," or reconciling the judge's general moral principles with their outcome based on specific factual circumstances, have the inherent effect of making judicial decisions more fair. The fact that in principle all litigants can appeal to a scheme of principles rather than to their own political strength has a democratizing effect.

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