by Varun Gauri
As a consequential Supreme Court term gets underway, with potentially large consequences for women’s autonomy and health, it’s worth thinking about the ways in which judges do or do not consider the real world consequences of their decisions.
In his confirmation hearings, Justice Roberts, like a Clark Kent intent on hiding his true identity, possibly embarrassed by the size of his ambitions and self-conception, adopted a pose of humility: On the bench, Roberts said, he would just call balls and strikes. No one goes to a ball game to watch the umpire. He wouldn’t pitch or bat, just call ‘em like he saw ‘em.
The metaphor can’t work for an apex constitutional court. The whole point is that the court has final say over the interpretation of the constitution; in other words, the justices determine the rules of the game, not just the size of the strike zone, at the margins. Nor does the metaphor work for lower level courts, which do not merely apply statutory law and judicial precedent, but strategically push the boundaries of laws, rules, and extant court opinions, which themselves are often purposefully vague or discretionary. As if umpires were saying, “Strike three! In my opinion. For now. If so and so is true.”
The metaphor also fails because umpires are participants in the game of baseball. They enforce the rules. If a batter says, “I know that’s three strikes, but I’m staying up here and taking another swing, anyway,” an umpire righteously tosses the batter from the game.
In contrast, in the United States (and most other countries) judges typically don’t enforce, or even monitor the effects of, their rulings.
There can be subsequent contempt or collection proceedings, but the burden to pursue those proceedings is on the party who prevailed. Judges don’t take the initiative. A scoundrel might not pay alimony, the bureaucracy might fail to issue a social security check, an immigrant might be deported, a domestic violence offender might violate a restraining order. Unfortunate, says the judge, but my job is to investigate and enforce. I just write opinions. Come back to me if there’s a problem.
In fact, enforcement is so far outside the judicial purview that the American judiciary as a whole isn’t particularly curious how often court rulings are complied with. When judges direct defiant parties to pay child support or an indifferent agency to write a check, how often are those payments made in a timely manner? Who knows? We don’t have systematic data. (In some domains, such as child support, partial data may be available; but they are not publicized, and the practice is not widespread.) The judiciary doesn’t seem terribly interested, or lacks the resources, and the bureaucracy has little motive to investigate its own failings or recalcitrance.
In a recent paper with Ryan Carlin, Mariana Castrellon, Isabel Jaramillo Sierra, and Jeffrey Staton, we surveyed a representative sample of 1,741 litigants in human rights cases in Colombia. We found that compliance with human rights court orders in Colombia was about 70%. We also found that support for these kinds of orders was very high, and that the 30% non-compliance rate was not acceptable to the large majority of Colombians. Disclosing rates of non-compliance did not reduce, and in some respects increased, support for the legal device to secure human rights. In other words, respondents in our survey cared about actual justice, not merely the language of justice, and were willing to contribute real resources to promote compliance. There appears to be a disconnect between what people want from courts and what Colombian judges are offering. I imagine the same is true in the United States and many other countries.
Judges could be more interested in actual justice. They could act more like participants in the social world, with the power to improve human lives. The European Court of Human Rights, the Inter-American Court of Human Rights, as well as apex constitutional courts in certain countries, have actively monitored compliance. Costa Rica’s constitutional court institutionalized a compliance tracking mechanism, which led to publicity that pressured the bureaucracy to significantly increase the fulfillment of human rights rulings. There is no reason why this couldn’t happen around the world, including in the United States. Compliance monitoring by itself increases compliance, so this could be done without unduly expanding judicial enforcement powers.
The fact that compliance monitoring does not take place, and that few even seem to notice, is part and parcel of a highbrow legal culture that seems to prize argumentation over human well-being. The inattention to compliance, apparent in judicial practices in which there is weak, diffuse responsibility for following up on rulings, is related to a broader conflation of law with justice. For the most part, justice is what happens in the world, not what happens in proceedings.