A Recent Dissent By Federal Appellate Judge Alex Kozinski Offers Rare Candor About the Political Nature of the Judicial Process

By EDWARD LAZARUS

Thursday, May. 15, 2003

Last week, the U.S. Court of Appeals for the Ninth Circuit formally declined to reconsider a prior three-judge panel's opinion in a hot potato of a case relating to the Second Amendment right to bear arms. The denial order, from which five judges dissented, paved the way for likely review by the Supreme Court.

That's not the only reason the denial was noteworthy. One of the five dissents also merits serious attention - for reasons having little to do with the Second Amendment.

The dissent was penned by Judge Alex Kozinski, one of the nation's most outspoken and influential "conservative" judges (though I use this term cautiously, because his occasionally libertarian brand of conservatism is not easily pigeonholed). In his dissent, Judge Kozinski offers a remarkably candid and deeply troubling description of the judicial process and how judges of integrity should go about doing their job. His dissent has deep implications for how we view the justice system as a whole, and the Senate confirmation process for federal judges in particular.

The Controversy Over the Second Amendment Ruling

The original panel's Second Amendment opinion, in the case of Silveira v. Lockyer, was issued last year. There, the held that the Second Amendment does not create an "individual" right to bear arms - one that would be enforceable like any other individual right, such as the right to free speech.

Rather, according to the panel, the Second Amendment merely recognizes a "collective" right to bear arms as part of a militia. Therefore, the panel concluded, it does not limit the power of either states or the federal government to enact gun control legislation.

Such a decision was sure to spark controversy - and it did. In adopting the "collective right" view, the panel placed itself squarely at odds with the Department of Justice - which recently embraced the individual right view, changing its longstanding position on the issue. Meanwhile, a recent decision of the U.S. Court of Appeals for the Fifth Circuit also supports the individual rights view. And so does a growing body of scholarship deriving mainly, but not only, from conservative scholars.

Given the heat of the controversy, it was hardly surprising that the panel decision sparked lively debate within the Ninth Circuit, too, with 5 judges passionately arguing that it should be reconsidered.

Kozinski's Dissent: A View of What Judicial Integrity Means

In his dissent to the denial of reconsideration, Judge Kozinski's expresses outrage at what he sees as the hypocrisy of the three particularly liberal Ninth Circuit judges who decided Silveira - including Judge Stephen Reinhardt, probably the most liberal judge in the country.

In Silveira, Kozinski charges, the three judges abandoned their usual habit of reading broad individual rights into the Constitution. Uncharacteristically, in the context of the Second Amendment, they instead chose an anti-individual rights reading.

The reason for this change of approach? Kozinski suggests it is pure result-oriented politics: an abandonment of high principle in the service of what he assumed to be these judges' narrow political commitment to gun control.

In response, Kozinski offered the following lecture on the integrity of judging:

As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.

Analyzing Kozinski's Dissent: Admirable Honesty About Judicial Discretion

Here, Kozinski has given his take on some of the most vexing questions of constitutional interpretation: What role should a judge's ideology play in legal interpretation? How does a judge avoid reading his "personal preferences" into the Constitution?

In addressing these issues, Kozinski surely must be commended for moving beyond the usual claptrap. It's standard fare for politicians and judicial nominees to try to deny that personal views play a significant role in judicial decision-making. The political rhetoric on the issue of judging is filled talk of setting aside personal views when deciding cases and applying "neutral" principles of judging. Yet with one snip of his rhetorical scissors, Kozinski has let the cat out of the bag: neutral principles are an illusion.

Implicit in Kozinski's description of the judicial process is the unavoidable truth that the meaning of most constitutional provisions is indeterminate. Put another way, conscientious judges, applying typical canons of interpretation, can read the Constitution in a variety of ways. Thus, as Kozinski tells us, libertarians can reasonably read the Constitution one way, while statists read it another.

Acknowledging this truth reminds us exactly why the Senate is absolutely right to be scrutinizing with such care the personal philosophies of President Bush's judicial nominees. As Judge Kozinski reveals, constitutional interpretation as currently practiced by judges of every ideological stripe is a result-oriented enterprise in which a judge's personal philosophy is the touchstone of decision-making.

The important question is not whether judging is political - it is - but how a judge can also ensure that he or she is a person of principle, as a judge, and not merely one of politics. If judging is political, what does integrity in judging mean?

What Kind of Consistency Is Required for Judicial Integrity?

Kozinski gives one answer: He suggests that a conscientious judge can indeed avoid the unprincipled over-imposition of "personal preferences" on the interpretive process. All that is required, Kozinski instructs, is to interpret the Constitution with a slavish consistency to one's overarching philosophical commitments. Thus, he admonishes that libertarians must always stick to libertarian interpretations, and statists, to statist ones.

As readers of this column know, I am a devotee of consistency myself. But the type of consistency Kozinski champions - ideological consistency - will not accomplish his goal. Indeed, if the goal is the one Kozinski's expresses - to limit to the role of personal preferences in judicial decision-making - it will actually be disserved by pure ideological consistency.

Set aside for the moment the obvious problem that few of us are "pure" libertarians, or pure statists, or pure communitarians, or pure anything else - and that, therefore, measuring ideological consistency in a treacherous enterprise. My point is this: Even if we could figure out some perfect way to be ideologically consistent, that still would lead us to the ideal Kozinski sketches: personal-preference-free judging.

Ideological consistency is actually a formula for entrenching personal preferences into judicial decisions. After all, what is an ideology or "jurisprudence" such as statism or libertarianism other than an elevated and systematized collection of "personal preferences"?

Some prefer a highly rule-oriented society with a great deal of legislation aimed at the serving the common good; others prefer as much personal freedom as possible to do as they like, and fear such rules. Some prefer "big" government, believing a safety net is key, others abhor it, believing a safety net stifles individual initiative. The reasons people have these preferences, in the end, could hardly be more personal - they come from one's childhood, family life, religious background, education, experience, line of work and personal reflection.

Thus, if - as Kozinski advocates - the duty of judges is to always interpret the intrinsically malleable provisions of the Constitution according to a single ideology, then judging is nothing more than consistent policymaking.

After all, many legislators also toe a single political line throughout their careers, with their votes predictable solely based on ideology. If judges merely do the same, then how are judges different from legislators - and why can't we throw them out of office is we dislike their vote on a given case?

A Better Option: Methodological Consistency

As Kozinski recognizes, clever judges can always come up with a method for imposing their personal views on the law unless, as I believe, the limit of some sort of requirement of consistency is placed upon their choice of methodology. He suggests ideological consistency is what is to be desired. But in my view, a far better measure for principled judging is methodological - not ideological - consistency.

Judges have available to them a variety of legitimate interpretive doctrines for giving meaning to the Constitution. One such method is originalism: looking to the Framers' intent insofar as it can be ascertained (always a problematic task). Another is textualism: Stressing the words of the Constitution, or a given statute, on the ground that they are the law to which all who were present agreed.

Some judges always look at legislative history; some never do. Some cite the Federalist Papers; some rarely do. Some look more closely at what their brethren think; some try to chart their own course. Some are steeped in constitutional history; some believe the Constitution needs to be dramatically updated for the modern world. All these different methods have very concrete consequences: What sources do judges stress? How much weight do they give them?

In my view, that is fine: Judges are entitled to choose their interpretive methods. But once they do, they should stick with it, unless they are convinced another is superior, and if so, they should stick with that. What judges should not do is pick and choose among various methods to see which will get them to a desired result. Textualist judges should remain textualist; originalist judges should remain originalist - at least in the absence of a very persuasive explanation in an individual case.

If judges do not - if, that is, they choose interpretive tools not over the long term, but case by case, opportunistically, with an eye toward their desired result - that is a sure sign that they are, indeed, abandoning principle. If they switch methods, that means they indeed - in Kozinski's words - "constitutionalize . . . personal preferences."

Otherwise, statist judges will always be free to pursue statism, and libertarians to pursue libertarianism - regardless of what their interpretive methods tell them. A statist textualist judge will suddenly become an originalist to advance her stated goals if the historic evidence of the Framers' intent fits her argument perfectly. Similarly, a libertarian originalist judge will ignore the Framers' intent if it suggests a result he doesn't like - for instance, that the Second Amendment establishes a collective right related to state militias, not an individual right of citizens.

For the law to have any meaning at all, it must sometimes compel judges to reach results with which they disagree. Statists must grit their teeth and admit that the law is libertarian, properly interpreted, in some cases. Meanwhile, libertarians, much as they dislike it, will have to admit that sometimes the collective good must win out.

In sum, requiring ideological, not methodological consistency, is just a more subtle way of permanently enshrining judge's personal preferences in the law. A cynic might wonder if, protestations notwithstanding, that's exactly what a strong-willed, highly opinionated judge like Kozinski really wants.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.