Justice - a process of discovery

This is a note on the jurist Justice Reinhardt of the Ninth Circuit, US Federal Court of Appeals.

Justice Reinhardt sat in the United States Ninth Circuit Court of Appeals from November 1979 until his death on 29 March 2018. In this piece, I extract passages from judgments and speeches that capture the idea of justice that emerged from Justice Reinhardt's long judicial career.

In 1999, when he wrote about a death penalty case of an appellant who plainly ought not to have been put to death (because he was most likely innocent of the qualifying offence), he expressed the hope that:

"If we have faith in the nature of humanity, if we believe that the course of evolution is progress, if we are truly committed to the principles of liberty, equality, and justice, I am confident that we can return to an era in which the courts serve as the guardians of the values embodied in our Constitution, to an era in which judicial protection of the rights of the poor and the disadvantaged will once again be the order of the day."

[From The Anatomy of an Execution: Fairness vs "Process", 74 NYULR 313 at 353 (1999)].

Illustrating this approach was The Proposition 8 case, Perry v Brown, 671 F.3d 1052 (9th Cir. 2012). Proposition 8 was adopted as a state constitutional measure by the California legislature: it prohibited same-sex marriage (in response to a judgment of the California Supreme Court which held that the state legislature's prohibition against marriage between same-sex couples violated the California Constitution, see In re Marriage Cases, S147999 15 May 2008). Ruling Proposition 8 to be in breach of the US Constitution, Reinhardt for the majority said that Proposition 8 stripped same-sex couples of their existing rights to marriage, adding that it served no purpose other than to "lessen the status of human dignity of gays and lesbians in California".

In the context of criminal trial rights, Justice Reinhardt has said that:

"At the heart of an effective defence is an adequate investigation. Without sufficient investigation, an attorney, no matter how intelligent or persuasive in court, renders deficient performance and jeopardizes his client's ."

[Richter v Hickman, 578 F.3d 944, 946 (9th Ci. 2009)]

This may seem to be an unusual extract to pick, but I pick it because inadequate representation by counsel is a failing that has been identified in criminal cases in all jurisdictions. Justice Reinhardt was known for his work ethic: he saw a lack of dedication to the professional task at hand as underlying many failings in criminal cases.

He has said that: "judges without compassion-and there are a fair number of them today-have simply chosen the wrong profession." Further, "Social justice is not a value system that exists in a parallel universe [it] is a substantive legal principle that pervades all aspects of the law from torts to Social Security claims. The purpose of our legal system is not to provide an abstract code of rigid rules; rather it is to promote values that are compatible with the vision of a just existence for all individuals."

[The Role of Social Justice in Judging Cases, 1 U.St. Thomas L.J. 18 (2003)]

Judges who see the law as an inflexible code to be rigidly applied no matter what the circumstances "permeate every area of the law." These are: "Literalists [who] use their methodology to proclaim narrow and limited constructions in disputes between insurance companies and accident victims; employers and employees; immigrants and the Department of Homeland Security; disabled claimants and Social Security Administration - and the results frequently favour the more powerful at the expense of the less. In contrast, judges with a more expansive view of the judicial function will often reach an outcome in such cases that is more sympathetic to the injured party or the person in need." [ibid].

He has likened "rigid textualism" and "worship of procedure" and the god of "finality" as "somewhat akin to the current trends towards religious fundamentalism. One aspect of fundamentalism is the worship of texts and the canonization of their authors. This idolatry seizes upon literal interpretations of words, phrases, and ...[taking] particular passages out of context and often stultifies, or misinterprets, the richness of a text. ..." [ibid]

He has noted however that, "Even judges who are most devoted to a just interpretation of the law find themselves compelled on occasion to affirm decisions with which they disagree philosophically or jurisprudentially. Judges are not free simply to substitute their personal desires for precedent." [Ibid at footnote 35]

Justice he describes as a "process of discovery", and "Every day, we must struggle to apply our concepts of justice in cases ranging from the most mundane individual disputes to great social and political controversies," which makes being a judge a "worthwhile and noble endeavour." [Ibid]