Article by Robin L. West
This Article argues generally for judicial paternalism, in both the contractual and constitutional spheres. I will conclude that the judiciary's newfound obligation to defer to contractual and legislative preference, exemplified in cases like Hardwick and Baby M, does not constitute a defensible moral impulse, conservative, liberal, or otherwise. Rather, an absolutist judicial deference to preference in cases such as these constitutes a moral failure. Thus, like many other critics of a preference-based morality, I will conclude that judges should not take either individual or communitarian preferences quite so seriously. However, I will also contend that although the arguments against the wisdom of many of our private and public preferences put forward by contemporary critics of conservative legalism are convincing, their affirmative case for judicial paternalistic intervention is seriously incomplete. I will accordingly offer what I believe is a more complete defense of judicial paternalistic intervention.
Part II of this Article outlines what I take to be the conservative legalists' major arguments against judicial paternalism. Part III outlines the major criticisms that have been made of the conservative legalists' case and then explains why those criticisms are incomplete. Parts IV and V put forward my affirmative defense of judicial paternalism. My thesis will be that the moral as well as motivational basis for paternalistic judicial intervention into both private contracts and public legislation is the judge's sympathetic understanding of the subjective well-being, aspirations, goals, values, and plights of the litigants before her. Thus, in the sparse language of the legal economists, judicial paternalism rests on an “interpersonal comparison of utilities”' and on the knowledge gleaned from those comparisons. I will then argue that this sympathetic response to the subjectivity of the other is not only what justifies judicial paternalism, but also what distinguishes it from legislative paternalism. Because of the much-maligned structure of the adversarial system of trial, judges are peculiarly well positioned institutionally to make precisely these sorts of sympathetic judgments. The case-by-case nature of adjudication, the immediacy of the litigants' narratives, and the reliance on flexible precedent all suggest that judges may be better situated than legislators to make morally justified paternalistic decisions in this way. I determine that far from being impossible, as the conservative legalists insist, an interpersonal comparison of subjective utility is the act of love, care, or sympathy that constitutes the essence of judicial paternalism.
In the Conclusion I briefly explore the role of sympathetic judgment in the context of the two particular decisions mentioned above: first, the Baby M case involving a contractual preference for surrogate motherhood; and second, the Hardwick case involving a legislative preference for the criminalization of homosexual sodomy. I will argue that in both cases, the judge's or Justices' refusal to intervene paternalistically into the manifested preferences of the litigants—individual preferences manifested in the private contract in the first case, and communitarian preferences manifested in the public legislation in the second—was unjustified. In each situation, the court could have intervened as a legal matter and should have intervened as a moral matter. In each, the court's failing to do so constituted a failure of sympathy, a refusal to care, a turning away from the other, and accordingly, a breach of the court's moral role.
About the Author
Robin L. West. Professor of Law, University of Maryland; Visting Research Associate, Institute for Philosophy and Public Policy, College Park, Maryland.
Citation
64 Tul. L. Rev. 659 (1990)