Occam's Razor and Activists Judges

For those of you unfamiliar with the term Occam's Razor, I found a nice definition on a site called ScienceInsights.

Occam’s Razor is a problem-solving principle that says: when you have two or more possible explanations for something, the one that makes the fewest assumptions is usually the best place to start. It’s not a law of nature or a guaranteed truth. It’s a thinking tool, a mental shortcut that helps you cut through unnecessarily complicated explanations and focus on what’s most likely.

Strangely, I encountered a reference to this "thinking tool" twice in the last week, after not hearing about it for quite a while. Additionally, I was reminded of it when reading a Facebook post which expressed frustration with the plethora of talking heads and political pundits who are endlessly trying to understand the motivations of our president. 

Finally, I was inspired to create this post after an animated conversation with my wife about some recent judicial decisions in general, and some from SCOTUS in particular.

My first task was to define what is meant by judicial activism which also meant understanding its opposite, judicial restraint. I found an interesting article on a site called ThoughtCo which does a very nice job of describing the difference with specific examples, without going so far into the weeds that only a law professor could understand it. I encourage you to read it. 

https://www.thoughtco.com/judicial-activism-definition-examples-4172436 

At the end of the day, what it comes down to is that judicial activism applies to decisions that go against precedent, or establish a new interpretation of a previous law (or judicial decision), while judicial restraint relates to decisions that adhere to traditional interpretations of a concept, hopefully out of respect to how the founding fathers would have ruled/and or guided us, through our founding documents, the Declaration of Independence and the Bill of Rights.

What is really interesting, of course, is that the evaluation of whether a decision is activist or not depends on the commenting person's own bias. In other words, an activist judicial rendering is not wrong or right in itself; it has no inherent judgement of morality but is judged as such by those who disagree with it. 

This is an important concept to understand and maintain when evaluating the various important cases that have been adjudicated, and will be in the near future because in our present political climate, activists judges are maligned each and every day by the current administration when they don't rule in its favor. An activist judge is a negative definition to many on the right who believe that too many judges have a liberal bias, yet those same people would not consider the more recent SCOTUS decisions which removed 50 years of precedent in regards to reproductive freedom for women, or granted unheard of immunity for the office of the presidenta as activist yet those decisions were activist by the definition of going against precedent (the Dobbs decision) or expanding executive privilege as they did this past year.

But my real motivation for this post was to speculate beyond these legal terms and touch on personal bias.

So, if we apply the concept of Occam's Razor to recent decisions that allow for the thought of birth right citizenship to be redefined, or that the undocumented don't have the same constitutional rights as those born here, or that people can be shipped off to countries with which they have no affiliation, or that women have different reproductive rights depending on which state they reside in, or that a president can take whatever gift offered, can sell whatever product he wants from the White House, can even sell his own words to the highest bidder so they can take advantage of our financial systems for their own gain, or that the Department of War (I usually don't use that word but in this case, that is their only justification) can unilaterally murder people in small boats in waters no where near our own borders, or........ I believe that many of these decisions have far more to do with the personal beliefs of the judges themselves than the law.

But again, that is not necessarily a bad thing. If I believe that all people should have the same rights in America, regardless of citizenship status, and so if I rule that any suppression of those rights is unconstitutional, perhaps my ruling reflects my moral philosophy as much as my interpretation of the Constitution. 

Conversely, if I believe that the undocumented men, women and children who currently live in America should be immediately deported, then finding a law or legal interpretation that supports this view is not a problem.

Whoa, Joe, you might be thinking. Sounds like you believe that all that legal stuff that judges learn in school and in studying the laws of our nation, in addition to the Constitution, are secondary to what they believe. That their decisions reflect their own personal morality, and that they just find the law, or an interpretation of one, to advance their version of what is right and what is wrong. If that is true, doesn't it make a mockery of our foundational belief that America is a nation of laws?

Perhaps. But then, how do you explain the reality that it was legal to give away land to the pioneers, land that other people lived on, had lived on for generations.

Or that the Missouri Compromise allowed the admission of Missouri as a slave state because Maine was admitted as a free state, thereby maintaining a balance of slave and free states in America. 

Or that the entire concept of slave and free states, is abhorrent to the idea that all men are created equally.

Or how about the 3/5ths compromise of 1787 when is was decided to count slaves as 3/5ths of a person when determining a state's number of representatives in Congress. Northern states with less slaves did not want slaves to be counted at all since they couldn't vote, while those states with slaves wanted them to be counted as a person, despite them having no rights. The "compromise" was to count people with dark skin as 3/5ths of a person. 

And then there are all the treaties ratified with Indigenous people over the decades after Independence that slowly stole their land, slowly forced them to live where we wanted them to live, all done legally, and enforced by the federal government.

And, let's not forget the separate but equal doctrine that was law for a few generations of people who were reminded every day about their secondary status by white only toilets and water fountains, where they could sit on a bus, where they could live and what jobs they could get.

Of course, the good news is that many of those horrific laws and interpretations of the Constitution (not to mention the Bible) have been re-litigated, perhaps by (activist) judges who decided that the old interpretation of the laws were wrong, or perhaps because their sense of morality transcended those of their cohorts. 

And so, yes, I often apply Occam's Razor when answering my wife when she questions a decision that she finds illogical, if not immoral. Of course, she gets a bit frustrated when I say that some of these decisions reflect the personal beliefs and biases of the judges, rather than trying to explain, logically and legally, why they made that decision because it seems to belie our faith in the judicial system, as well as in humanity itself.

It is well known that Chief Justice Roberts did not agree with the legal precedent granting independence to the various departments and agencies within the United States government even those for which the executive (president) had appointment authority. So, it was no surprise that the Robert's Supreme Court ruled 6 -3 to gut that long held interpretation. He wanted it for half of his life, and finally, with the help of 5 other jurists who also disagreed with the 90 year precedent, it was gutted. 

Same law, 90 years of interpretation that limited the executive's authority to fire the heads of these independent agencies, but suddenly a new interpretation, just coincidentally led by a man who personally did not agree with it for most of his legal life. 

What else can you call the rejection of a 90 year legal precedent other than the ruling of an activist court? Or perhaps, as Occam's Razor suggests, it is just what those 6 justices believe, and since they have the majority, good bye the Humphreys Executor decision.

Finally, I hear a lot of people say that our rights are divine, god given, perhaps they might even say that they originate in the Bible. I generally scoff at such notions, not because I don't believe that our laws have basis in morality, do not kill, do not steal, etc, but because without laws, created by man, people are routinely robbed of their dignity, their livlihood, their opportunity for happiness. I detailed a whole bunch of examples above.

We are only as moral, or good, as the laws we create, and how those laws are enforced. God has nothing to do with it, other than the examples She has provided through the advanced spiritual beings that have walked our planet over the centuries. 

One could say that kind of statement is a bit scary, that we have been left to our own devices, that our laws are moral or immoral, based on our own biases, our own understandings of what this life is about, what is the point.

Two Hundred Fifty Years ago, a bunch of men with disparate views on such things came together and hashed out a few documents that have changed how men treat each other, documents that reflected their own personal beliefs, as well as the writings and philosphies of many who came before them. I would like to believe that for the most part, and despite their biases when it came to women, and people of color, that they had the best intentions, had the best in mind for the our nascent country. 

I am less sure of that now. Less sure that those who are in charge, who control the resources, who make the BIG decisions, are inclined to lead with the common good in mind when they apply their personal beliefs to their choices. 

I guess only time will tell.