Thomas Sowell shows that he would have made an excellent Supreme Court Justice despite the fact that he’s an economist, not a lawyer. Or maybe because of this fact. As Sowell states:
Modern economists usually have in mind the economic advantages to a society of having a framework of known, enduring, and dependable rules — the rule of law — within which economic activities can be planned and long-term commitments and investments made. But [John Stuart] Mill saw the benefits of known rules extending far beyond economic benefits.
Mill spoke of the danger of having to lead “a life of anxiety lest by some of my acts I should unwittingly infringe against a will which had never been made known to me.” Some of today’s vague and ambiguous antitrust, anti-discrimination, and environmental laws strike like lightning out of the blue to hit people who had no idea they were doing something wrong.
The Constitution of the United States expressly forbade retroactive laws — “ex post facto” laws, it called them — but judicial decisions creating new rights, duties, and nuances out of thin air are for all practical purposes ex post facto law.
“Evolving standards” are also ex post facto law, for who can know in advance how someone else’s standards will evolve, much less which evolving standards will get a majority of the votes in the Supreme Court?
The recent practice of using foreign laws as bases for judicial decisions about American laws likewise turns law into the caprices John Stuart Mill feared more than he feared bad laws.
As Sowell notes, many judges have forgotten about the importance of the rule of law (or have confused that regime with obedience to their evolving, ad hoc views). Even the most intelligent and well-intentioned judge can create a mess by indulging in hair-splitting that, at least on its own narrow terms, may seem reasonable.
This post from 2003 provides an example of this phenomenon in the context of race-based university admissions.