In class today, we struggled to issue a Dworkinian response to Kennedy's critique. Here's the one I brought up in class, articulated slightly better-
Debasing Kennedy's assumption of the subtleties between adjudication and legislation:
Kennedy stipulates adjudication as applying the law, and legislation as making the law. Moreover, legislative intent is laden with political ideology, and most likely, partisan bias. Adjudication, he states, does not. While judicial decisions may make one party much happier than the other, he stresses that the process of reasoning itself is untouched by partisan ideological leaning, if of course, the judge is competent.
With that being said, how is can this distinction really be made? Dworkin does state that by mere virtue of reading and applying law, we interpret it, and when we interpret things, they are subject to our experiences, values, and presupposed notions of how things (or the law in this case) work. Can Kennedy really claim that even the best judges can steer clear of partisan bias, as if it can be immediately recognized and avoided? Bush v. Gore is a striking example of how the best judges in the country (and a relatively strong group in the history of the Supreme Court, I might add) can slip into the partisan rift. This argument is not so much defending Dworkin's, as it is attacking Kennedy's from the Dworkinian perspective.
I'm sure there does exist a much stronger Dworkinian response to Kennedy. Thoughts?
What you wrote makes me think of a theme within the Caucasian Chalk Circle by Bertolt Brecht. The theme being on who is qualified to decide on the law. In this I'd consider it more specifically to adjudication, for the end of the story consists of a trial over who has the right to have ownership over a child, (practically the same situation within the Judgement of Solomon). The judge is Azdak who was recently a prisoner about to be put on trial, but cunningly changes the tides so that he becomes the new judge. The Fat Prince puts him in charge stating, "The judge was always a chancer; now let a chancer be the judge!" Like you mentioned, Kennedy states that those applying the law should not have bias in their reasoning. The point you bring up about Dworkin and interpretation then leads me to think, 'who has the right to apply the law?'
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ReplyDeleteI think our society has given that right to our government to decide who applies the law. The supreme court game themselves the right to apply law through judicial review. Our society, generally speaking, accepts this because not enough people express concern towards this issue. I think its a valid question that needs some answering.
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