There is an essay in the February 8th edition of Newsweek by Dahlia Lithwick in which she lauds a Justice on South Africa's Constitutional Court for taking an openly personal approach to the judicial function, and castigates our own Supreme Court Justices for aspiring to "be machines" that just "call balls and strikes." ("The View From the Bench: Why Judges Should Get Personal") I stumbled upon this article just after hearing a local news reporter interview a Super Bowl official from my area who had recently returned. In the interview, the reporter wondered how NFL officials can possibly remain impartial -- "they must," the reporter opined, "have favorite teams after all."
I don't know if Ms. Lithwick is a football fan, but she ought to think about how the NFL would operate if my local news guy was right. If, on any given Sunday, the officials operated as adjuncts to one or the other of the teams on the field, chaos would ensue. No fan of the sport could have any confidence that superior skill on the field would necessarily translate into victories, teams would have an incentive to "invest" in officials, and players could have their careers negatively or positively affected as much or more by their personalities than their athletic ability. In short, the NFL (or any contest that we expect to be decided on the merits for that matter) could not function absent neutral rules applied impartially.
It is stunning that presumably educated people such as Ms. Lithwick can have this very basic concept to slip through their mental grasp. Our fundamental freedoms and the equal protection of the law depend upon 1) the establishment of rules that apply with equal force to all similarly situated people and 2) when disputes arise regarding their application, it is arbitrated by a disinterested party who in good faith aspires to decide the dispute on the merits rather than his or her own predilections. Indeed, the first principle (neutral rules) means nothing absent the second (a neutral judge of behavior pursuant to those rules).
It is for precisely these reasons that we demand that government officials (including judges and Justices) disclose any financial or other interests that they might have that would prejudice their conduct or decision-making, and that we ask those who may have a personal interest in a case or matter to recuse themselves. People are people, after all, but we hope that we can insulate their personal interests sufficient to allow them to "call balls and strikes" impartially.
The scariest aspect of Ms. Lithwick's essay is that she not only seems to reject that model, but that she does so in the belief that somehow it would help those less powerful (the proverbial "little guy") if judges took their cases more personally. The little guy's best hope is instead a level playing field. Those who control the levers of power, if allowed to operate consistent with their own biases and interests, will do nothing but cement that power. Ms. Lithwick's model is a recipe for ensuring that the little guy is forever on the outside looking in.
