Law prof proposes a middle-ground theory of judging to guide centrist judges
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Conservative judges are guided by the original meaning of the Constitution, while liberal judges view the Constitution as a living document. But what about centrist judges?
In an article for the Atlantic, Aaron Tang, a professor at the University of California at Davis School of Law, noted that the two theories of constitutional interpretation have created an inverted bell curve of judges. There are a lot of liberal and conservative judges but few in the middle.
“Without a compelling philosophy of judicial moderation, what hope is there for the reemergence of judicial moderates?” he asked.
One possibility is to defer to legislatures and stare decisis. But Tang saw problems with both approaches. The problem with deference to lawmakers was exposed in the civil rights era, when legislatures passed racially discriminatory laws. And adherence to stare decisis can leave courts without the ability to correct constitutional errors.
Tang settled on a different theory to guide judges: the “least harm principle.”
Tang said the U.S. Supreme Court already “stumbled onto the beginnings” of the theory at the end of the last term. In several high-profile cases, the high court ruled against the side “with the greatest ability to avoid the harm it would suffer in defeat.”
Tang offered some examples, In Bostock v. Clayton County, the Supreme Court ruled that gay and transgender workers are protected from discrimination in employment. The opinion noted a way for religious employers to minimize their perceived harm when it said their their requests for an exemption would receive “careful consideration” in future cases.
The same principle explained the Supreme Court’s ruling for former President Donald Trump in his fight against congressional subpoenas, Tang said. The Supreme Court decision, Trump v. Mazars USA, noted that Congress had better options to avoid the harm of defeat. Those options included issuing subpoenas to other sources or issuing narrowed subpoenas to Trump.
Tang elaborated in an article slated to be published in the California Law Review.
The least harm theory “curbs judicial partisanship,” Tang wrote in a summary of the law review article. “It bolsters the court’s legitimacy by ensuring that losing groups have more effective responses to their defeats than attacking the court. It encourages litigants to identify solutions, rather than belittle their opponents. And it enables the court to pursue an important, yet underlooked objective in hard cases: to do the least harm possible.”
Hat tip to How Appealing.