By rewarding favored political causes, judges are removing the blindfold from lady justice and putting weights in her balance.
The Assault on Neutral Principles
One of the hallmarks of a liberal regime is adherence to neutral principles in applying the law. If laws are enforced with partiality toward some classes of people or groups, the state becomes an instrument of oppression rather than a guarantor of liberty and property. Attachment to neutrality separates liberals, classical or otherwise, from authoritarians and totalitarians. Sadly, we see evidence today that it may separate liberals from some progressives as well. It is terrible to see police misconduct that results in death. It is also dreadful to see buildings being trashed and looted and small-business owners dispossessed of a lifetime’s work. But ultimately, individual wrongdoers, whether private citizens or low-level officials like police officers, can and should be held to account. The trashing of neutral principles by government officials in high office, however, can endanger the liberal regime. Politics then becomes all about acquiring power to protect your side from the other.
As with most legal issues, there are some hard questions around the edges of what constitutes neutrality in the application of principles, but the core is clear. As my colleague, Martin Redish, a liberal but not of the classical kind, has written, “neutral principles require that whatever rationale [is selected] . . . must be applied consistently in all cases; it cannot be selectively altered in subsequent cases solely because . . . the outcome dictated by use of that principle [is seen] to be politically distasteful or offensive.” Thus, a decision in applying a principle should not depend on the identity of the parties, or even on the nature of the dispute, but rather on standards that transcend the dispute and the character of the parties.
We have seen evidence of the flouting of neutral principles in the manner politicians have spoken and acted during the confluence of the protests over Floyd’s shooting and the coronavirus crisis. Most notoriously, New York City Mayor Bill De Blasio justified banning outdoor Hasidic funerals during the pandemic while authorizing—indeed supporting—protests of police brutality against African Americans because the latter were more important. Protests and funerals are both protected by the First Amendment, funerals constituting both free speech and assembly, as well as the free exercise of religion. To argue that some people exercising free speech rights should be exempt from the coronavirus restrictions based on one’s assessment of the political importance of speech is to turn the concept of neutral principles on its head.
Not surprisingly, it is also against a century of Supreme Court case law, because the need for neutral principles is particularly important when it comes to the First Amendment. Political actors can gain support from picking and choosing what speech to encourage and what to suppress. Where there are reasons to believe that trust in those interpreting the law should be low, constraint on discretion is even more essential.
But neutral principles are important outside of the First Amendment. And here too they have been ignored. Cyrus Vance, the district attorney of Manhattan, said that he would decline to prosecute anyone arrested for “disorderly conduct or unlawful assembly” in the course of the recent protests and looting in New York. The reason again was the identity of the protests in which they were participating. There is no suggestion that Vance would not apply the full rigor of the law to those arrested while protesting abortion. It might be perfectly reasonable to decide to excuse some protesters from being prosecuted for minor offenses but only if the kind of protest at issue is not the relevant factor. To make prosecutorial decisions dependent on the political beliefs or objectives of those prosecuted is a step toward tyranny.
Neutral principles have purchase outside the law as well. A liberal democracy in a complex society like our own depends on experts because most people do not have the time, inclination, or educational background to understand completely certain issues of public importance. But necessary democratic confidence in experts is, in turn, dependent on their neutrality. Experts are trustworthy precisely because they leave aside considerations that are irrelevant to their professional expertise in making their judgments. But epidemiologists who argued for the strongest possible lockdown rules to prioritize saving lives from the virus then turned around and declared that mass protests about police misconduct against blacks were acceptable because the cause was important. Some have argued that this advice was not inconsistent because protests of police brutality could themselves save lives in the long run. But, as David Bernstein has noted, epidemiologists have no remit to make such judgments. When experts squander credibility by making political judgments outside their expertise, they erode their important function in a democracy—restraining populism when it turns toward ignorance about science.
Relying on neutral principles is not to give up on reforming institutions that are systemically discriminating against classes of people. Indeed, the concern that some police departments are discriminating in law enforcement against African Americans is an appeal to neutral principles. The nub of the complaint is that one group of people is not being treated like another. The struggle for the instantiation of neutral principles can be a noble one.
Unfortunately, the legal academy’s Left has been targeting neutral principles for a long time. While it may be taking pleasure in the current official validation of its ideas, they are not only dangerous, but intellectually unsound. For instance, in perhaps the most widely cited critique of this issue, Mark Tushnet has argued that anyone can always retrospectively reinterpret precedent in the liberal order to generate a wide variety of principles. Thus, he implies that neutrality yields no substantial constraint. And certainly, Tushnet is right that precedents can be reinterpreted to yield different principles. But that does not mean that one interpretation is not more plausible than another, given deeply embedded understandings of the world. Consider a mathematical analogy: Given any sequence of numbers, we can frame a rule to obtain whatever number we want in the sequence. But for many sequences, particularly long ones (say, 2, 4, 6, 8, 10; or 1, 1, 2, 3, 5, 8, 13), we would consider that one rule has more intuitive plausibility than any other.
So it is with the law: some principles that explain previous decisions are more plausible than others. To go back to the examples discussed here, it very difficult, if not impossible, to interpret the case law on the First Amendment as making the constitutional protection for Free Speech dependent on the utility of the cause for which expression is used. No current judge on the federal judiciary, whatever his ideology, would make the distinction De Blasio made.
Another attack by the Left is to observe that free speech is itself not a neutral principle, as if that were a refutation of the need to apply the concept neutrally. The concept of free speech is indeed not neutral, because we have decided to give constitutional protection to that activity and not to others. This point raises what may initially seem like a paradox within liberalism. Liberalism does indeed choose to entrench certain rights and not others. And the choice of these rights is often defended not simply on grounds of neutrality but either on the utility or the natural value of those of rights. Moreover, figuring out what rights are to be constitutionally protected is itself a difficult enterprise and the structure of that discovery process has to be defended, as Mike Rappaport and I have done in the case of constitutional rights, on its utility.
But once the rights are determined, liberalism requires that they be defended in a neutral manner. The impartiality of rule utilitarianism is the only practical way to proceed in a world where people themselves tend to partiality. Without such neutral principles, we are left to the vagaries of politicians. But rulers and their coalitions cannot be trusted to make ad hoc decisions, like those of which the Mayor of New York or others in this crisis are so confident. The human frailty, not to mention the more than occasional malevolence, that has been on display in the last few weeks, confirms the wisdom of putting neutrality of principle at the heart of the liberal order.