Justice Stevens’ decision to retire prompted the age old discussion of “strict construction” by judges. The idea is that judges are supposed to strictly apply the law to the facts at hand and not do much in the way of reflection on the law or the desirability of the outcome. During that discussion, I suggested that I hadn’t actually had the pleasure of observing a strict constructionist, regardless of how a particular judge might describe him or herself. Hugo Black is probably as close as we’ve gotten.
What occurred to me only later is what immense responsibility this would place on legislators if they were actually forced to deal with nothing but strict constructionist judges. They’d have to think through the full implications of what they wrote into law without being able to trust that judges would be, well, judicious in how the law was applied. It reminded me of a passage from Neal Stephenson’s Cryptonomicon:
This “sir, yes sir” business, which would probably sound like horseshit to any civilian in his right mind, makes sense to Shaftoe and to the officers in a deep and important way. …he has come to understand the [military] culture for what it is: a system of etiquette within which it becomes possible for groups of men to live together for years, travel to the ends of the earth, and do all kinds of incredibly weird shit without killing each other or completely losing their minds in the process. The extreme formality with which he addresses these officers carries an important subtext: your problem, sir, is deciding what you want me to do, and my problem, sir, is doing it. My gung-ho posture says that once you give the order I’m not going to bother you with any of the details – and your half of the bargain is you had better stay on your side of the line, sir, and not bother me with any of the chickenshit politics that you have to deal with for a living. The implied responsibility placed upon the officer’s shoulders by the subordinate’s unhesitating willingness to follow orders is a withering burden to any officer with half a brain, and Shaftoe has more than once seen seasoned noncoms reduce green lieutenants to quivering blobs simply by standing before them and agreeing, cheerfully, to carry out their orders.
I’ve read enough legislation and draft legislation in my time to shudder a bit at the thought of judges applying the language absolutely in all situations unless the text specifically instructs them not to regardless of whether doing so makes sense or seems remotely just. That would really up the pressure on legislators to craft legislation meticulously, being sure to describe every caveat and exception.