What the Law Is/What the Law Ought to Be: Marbury Revisited

I’m still riffing on the Law Is versus the Law Ought distinction.

Wrote Chief Justice Marshall in Marbury v. Madison:

“It is emphatically the province and duty of the judicial department to say what the law is.”

Often, scholars add to the end of this sentence, writing “It is emphatically the province and duty of the judicial department to say what the law is[, not what the law ought to be].”

The ought element is often added derisively to ridicule Judges who impart their subjective views on the Constitution, and normatively attempt to change the law to reflect their personal tastes.

But what if a Judge’s personal tastes, so to speak, did in fact reflect what the Constitution actually means; what the law is. If Is and Ought are the same, then much of this distinction fails.

Now, I doubt any Judge in existence could be such a faithful arbiter of the law, such that his or her personal views do not get in the way, even in the slightest bit. Of the current Justices, Justice Thomas is probably closest to this ideal. But he has but one vote.

The problem with the Is/Ought distinction falls to the personal predilections of the Judges.

The socratic  syllogism would go as such:

A Judge is a Person.
All People Are Biased.
Therefore Judges are Biased.

So I suppose the solution to this problem would be to eliminate the human element.  What if courts were run by computers? But, who programs the computer? That’s a question I pondered in a Jurisprudence class, taught by the venerable Michael Krauss, at Mason. Maybe fodder for another post.