In that video interview I posted recently where Matt Welch of Reason talks with 9th Circuit Chief Judge Alex Kozinski, I have only one disagreement with the judge (OK, two). Starting at 43:50 in the interview:
Welch: Why don’t you like jury nullification?
Kozinski: It’s lawlessness. You know, at least with a legislature, you can vote the rascals out. And it’s the law that we are ultimately responsible. But the idea that your fate, whether you will either be found guilty or innocent, or whether you’re gonna be found liable or not liable, or the amount of damages that you’re going to pay is up to the law made up by twelve people who have no constituency, who’ve gotten elected to nothing, who never get elected to anything again, who have no one to respond to – you can’t kick out of office – and your fate, your future will depend on those twelve people making up the law on the spot? It’s just a horrendous idea. It’s really one of the truly evil ideas, because – think about it – we always think that what juries are going to do is take a law that they find unjust – that we all think is unjust – and they are not going to apply it.
But what if they take a law that is just and say “we don’t like this defendant”? We don’t like this defendant because its a corporation. We don’t like this defendant because he’s rich, or white, or black, or we don’t like him because he has an accent. And we don’t have to follow the law, and so we’re going to make up the law right now and find him guilty, or find him liable, or ruin him financially? Because we can make up the law? We can do what the legislature, what the people assembled can do, we can do it in this room, we twelve.
It’s a really frightening idea. If anyone has ever been in front of a jury, really had your fate in their hands, the last thing you want is for them to be able to make up the law as they wish.
I understand the point, but I have to disagree. Getting twelve people to agree to anything is pretty damned hard. Add to that the constraints placed on a jury, and the probability that they’re going to decide “we hate that guy, so he’s going to fry” are pretty slim unless the prosecutor has done his job. From my perspective, the ability, the duty of any juror saying “NO!” in the belief that a law is unjust or being applied unjustly and making it stick is far more important, and more likely. To tell me that I must enforce a law I find unjust or unjustly applied simply because it was approved by a legislature is repellent. That is evil. We are ultimately responsible, and shirking that responsibility is abhorrent to me.
The second disagreement comes at 38:06 (yes, I know that one comes before, but it’s my post and I’ll do it in the order I want to):
I think the Supreme Court got it right, but it was far from inevitable. The words of the Second Amendment are clear in one way, but I think they could be rationally interpreted the other way as well.
I agree that the Supreme Court got it right, I agree that said decision was far from inevitable, but if one is intellectually honest I do NOT think it could be – in the face of the history and evidence – “rationally interpreted the other way”. And I think Judge Kozinski said it himself (PDF) better than I ever could:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or…the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.