The analyst on PBS said that.
Like it was a cliche in legal circles.
His point was that all judges are at some point political, being elected or appointed, and they simply can’t be all that objective when everyone is staring at them.
Is this a truism?
Well, I’ve never heard of it. The maxim that is most often quoted is “Bad facts make bad law.” Meaning, if you’re dealing with a tough of unattractive case, a judge might be inclined to engage in questionable legal analysis in order to reach the desired result.
Say the case involves an child molester, but there is some question about whether the child molester was Mirandized (read his rights) before he was interrogated. A judge might be inclined to say that the lack of Miranda was okay, in order to reach the result the judge wants, which is to put the child molester away and not let him or her walk on a “technicality.” But then that case becomes part of the vast body of case law that other judges may look at and cite for their decisions. So the “bad facts” of that one case can lead to “bad law.” This is the problem with “results-oriented” judging, and I think it is a legitmate complaint.
But I’ve never heard that “important cases make bad law.” The saying seems to assume that judges who are making decisions in the public eye are more likely to surrender their impartiality and credibility in order to make the publicly popular decision. If I was a judge, that assumption would probably piss me off. Sure, there is pressure from the public to act a particular way, if the case is a high-profile one. But one of the things we expect of our judges is that they will adhere to their oaths of office and maintain their objectivity, even in the spotlight.
Way I heard it was ‘Hard cases make bad law’.
Imagine a case whose circumstances are without precedent - like the case of the cojoined twins in the UK.
The options were, leave them and they both die, separate them and one dies, all against the expressed wishes of the parents.
Add to this the fact that the European Convention on Human Rights stateas that all citizens have the right to life and you can see that separating them would infringe on the right to life of one of them.
This has been ruled on but it would be tempting to try pass some sort of law that would cover this eventuality in a reflex reaction without the lengthy process of consultation that usually occurs.
Laws passed in a hurry because ‘something must be done’ can end up with all kinds of problems and anomolies.
I’ve heard the same version as Casdave and here in New Zealand it’s a truism. It’s used along the same lines as Jodi’s version (‘Bad facts make bad law’), but usually where the merits of the case being decided are more evenly balanced than in the example Jodi used.
A good example of this maxim involved gay marriage. New Zealand’s Marriage Act (dating back to the 1950s)does not expressly require the two parties marrying to be of the opposite sex. In Quilter v Attorney General [1998] 1 NZLR 523 a lesbian couple argued that the registrar’s refusal to accept their application for a marriage licence was thus contrary to the Marriage Act and breached the anti-discrimination provision of the New Zealand Bill of Rights.
Quilter argued that because the Marriage Act was silent on whether or not marrying couples could be of the same sex it should be interpreted as being consistent with the Bill of Rights’ prohibition on discrimination.
The Court of Appeal rejected this rather strong argument, based on a fairly shaky “original intention” approach to statutory interpretation and asserting that such a major change in social policy was not something for the Courts to implement. A hard case making some pretty dodgy law.
As for ‘important’ cases making bad law; hopefully Jodi’s right and judges can maintain their impartiality in the glare of the spotlight. If anything the increased public scrutiny should tend to make judges even more objective. No judge would want to be seen to be breaching their obligations to act objectively with the eyes of the world upon them.
Like Casdave, I heard it as “Hard cases make bad law”. This basically refers to the possibility of a case where one side is an obvious scum bag, but the law is on his side. In trying to achieve justice in this case, (Let’s give this bastard what he has coming!) the judge would have to basically ignore the law. This can make for injustice to others in the future.
I have also heard “hard cases make bad law,” with exactly the meaning that Jodi described. I also heard the PBS guy, and I thought I remembered that he said “big cases make bad law.” I thought it was just a misquoting of the cliche.
I think entirely too much time has passed since I made the statement “of course, I agree with Jodi” -once again, she’s eloquently, succinctly and without sarcasm or snippiness, answered a question as asked. Too few people are able to do that. thank you, once again.
:: blush :: Why, thank you, wring. The check is in the mail. 