A follow up regarding the role of life experience in interpreting the law:
In Jacobellis v. Ohio, the Supreme Court examined whether a particular film violated obscenity laws. In his concurrence, Justice Potter Stewart famously wrote, “I shall not today attempt further to define the kinds of material I understand to be embraced within [hardcore porngraphy]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” (emphasis mine).
I humbly submit that the life experiences of Justice Stewart figured prominently in his knowing it when he saw it.
I’m going to Berkeley Law this fall, and in an attempt to get my toes wet, spent some time going over the transcript of the Sotomayor hearings earlier today. One of the issues that came up repeatedly was whether allowing “life experiences” to affect your judgment violated the duty of a judge to remain impartial. The most experience I have with judging is high school debate, so … big grain of salt, but myinitial reaction is no, it doesn’t. To understand why, let’s step back a little bit and consider what it even means to be impartial.
Law is not math. It is subject to interpretation. When your laws are written over the course of over two hundred (occasionally turbulent) year by thousands of (occasionally boneheaded) individuals, you’re going to get contradictions, gray areas, and general stupidity. Ideally, you’d ask the legislature to clarify, but it’s possible (probable?) that individuals within the legislature will disagree on what they meant when they wrote it. And that’s assuming the individuals are still alive and conscious.
Therefore, law cannot be impartially interpreted in the same manner that, say, a calculator impartially interprets a mathematical equation. Instead, the best a judge can do to be impartial is to be consistent and by extension, predictable.
Continue reading “Impartial Defined”