Do Judges Decide What Is Best For Society?

Senator Kyl of Arizona's last line of questioning today made very little sense to me. He suggested to Judge Sotomayor that "a district judge decides, in Smith v. Jones, whether Smith wins or Jones wins." And he went on to say that the court of appeals decides only whether the district court was correct on that decision. He contrasted that with the notion that a judge should base his or her decision on "what is best for society."

Here's why I disagree. Most cases -- even cases involving civil lawsuits between two private parties -- involve which of two or more values (embodied in constitutional provisions, statutes or case precedent) has more priority.

Thus, when a state statute is challenged as violating equal protection of the laws, the court must decide, on the facts before it, whether the value of allowing the elected state legislature to enact public policy is trumped by the value of requiring all citizens to be treated equally. That choice is determined by established "choice-of-value" rules which provide increased scrutiny depending on the type of classification used in the state legislature's enactment.

Most value conflicts presented in litigation are not as clear cut as equal protection. In those cases, the fundamental duty of a judge is precisely to decide which of competing values at issue is more important, and therefore controls the case. That is the same as deciding "what is best for society." Every judge and justice, from Justice Douglas on the left to Justice Scalia on the right, do exactly that.

A Justice Sotomayor will do the same. And should.