The Hawaiian Judge Dominant Strategy

The purpose of a law is what it does. What it does, is what the judge says it does.

This is essay is part of Applied Biofoundationalism. All chapters are linked at the end. Enjoy.

The Chevron doctrine has been overturned by the Supreme Court. It’s a blow to regulators, as Chevron allowed them to interpret vague laws how they saw fit. In a country mostly ruled by unelected bureaucrats, it’s positive to have it gone.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark decision of the United States Supreme Court that set forth the legal test used when U.S. federal courts must defer to a government agency's interpretation of a law or statute.^[1] The decision articulated a doctrine known as "Chevron deference".^[2] Chevron deference consisted of a two-part test that was deferential to government agencies: first, whether Congress has spoken directly to the precise issue at question, and second, "whether the agency's answer is based on a permissible construction of the statute".

Overturning Chevron is good in that it detracts from regulatory overreach and makes adjudicating disputes less of a kangaroo court. But power is a zero-sum game, where did it redirect? It rerouted to another set of bureaucrats: the judiciary.

Even more authority has now been handed to judges. Judges are mini despots who can do nearly whatever they want in that small room where they're kings. The interpretation of the law is what they say it is when you’re in their courtroom. The same conflict can have two completely different rulings depending on who's wearing the robes that day.

The judge's politics guide the interpretation of laws; this is part of the human condition. You can suppress it, but you cannot eliminate it. It doesn't matter where you went to school or what legal doctrines you espouse; those legal philosophies are merely moral beliefs, manifesting as through legal rulings.

Your moral foundations are expressed in interpretive political analysis; because your political beliefs are simply your moral ones. If it's legally subjective, it's inherently political. No matter what the judge says or how many oaths she signs, her moral convictions are seeping through into her decisions. We cannot disentangle this, but there are certain methods that delineate boundaries better than others.

Here are the moral foundations that inform your political ideologies:

From Jonathan Haidt

The following are the legal doctrines of a “conservative” judge vs a “liberal” one, stripped down to their core principles and motivations:

• Originalism (conservative jurists): is the legal philosophy of the authority/subversion moral foundation. You defer and adhere to the authority of those who made the law based on their intentions, not yours, when applying it.

  • This should occasionally produce rulings you personally find to be unjust, even abhorrent. But that’s how it is sometimes, because your duty is to apply the law as written and originally intended, not give your political opinions on what it ought to be. You don’t like the law? Persuade your fellow man to change the rules: legislators legislate, judges apply legislation.

• "The Living Constitution", aka Progressivism (liberal jurists): is the legal doctrine of fairness/cheating and care/harm. Applied law is whatever you find fair, wrapped in comforting phrasing such as legislation being “dynamic” and “serving modern society”. What’s “dynamic” and “modern” has little if any consideration for the law as originally written, because you’re expressing moral tenets with post-hoc legal rationale. This is what “legislating from the bench” means.

  • Strong likelihood you personally agree with your rulings when this is your north star. It's a deeply enticing legal philosophy for this reason: it’s quite empowering and satisfying to always morally align your verdicts.

A sign of a good jurist is hating some of your decisions on a personal level. Scalia taught me this. You should have antipathy for some of your rulings, because following the law should not always be morally righteous and comport with your worldview.

“Do justice your honor!”

“I don’t do justice, I apply the law.”

— I can’t recall who originally said this, but Scalia shared it in a lecture and it stuck with me

Law is the language of order, and imposing order is sometimes unpleasant. A ‘living constitutionalist’ experiences no such discomforts; the doctrine that guides their judicial conclusions almost always produces an outcome that they personally support. That is not what the practice of law looks like, and it’s becoming increasingly common, as apparent by the hyper-politicization of the court-appointee process.

A reminder of how far the SCOTUS process has fallen: Scalia was appointed by a vote of 98-0. There’s zero chance he’d get confirmed today with anything less than 51 Republican seats in the Senate. That’s what electing a good jurist looks like; not your friend who has the same opinions as you.

Spoken from the man himself:

Originalism (guided by Textualism) is the only genuine attempt at legal analysis, because it best endeavors to separate the judge’s feelings from what the law dictates. It’s imperfect, but it’s the cleanest shirt we have in the dirty hamper. All else is legislating from the bench: a derivative of the judge’s political opinions and moral foundations.

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Why The Judge Matters

Judiciary power is substantial and its application is deeply interpretative. In politicized environment, this subjectivity is exploited. It's why you see judge shopping, and why you’ll see more of it as the legal system comes under further political pressure. Chaos rises as the organ of societal order, the judiciary, is corrupted.

Remember when that obscure judge in Hawaii blocked Trump's immigration orders, and then kept doing it. A policy the president campaigned on, democratically elected to implement, and one tyrant said "no, I don't see it that way".

Why'd they take the case to Hawaii? Is it because the law is better understood by the beach? Or because they knew a liberal judge would give them the ruling they wanted if they said aloha?

With Chevron gone, state overreach will recalibrate towards a new path. Even greater power has been handed to an increasingly politicized legal system.

Judges matter, a lot. The judiciary exerts actual power over the people that lasts well beyond a president’s four years. The president is otherwise mostly a totem in respect to actionable power. The unelected bureaucracy of government workers that run much of our lives through unelected institutions cannot be fired or controlled by him. When people say “Deep State”, this is what they’re referring to.

In future essays, I’ll break down how these moral foundations are biologically ingrained manifestations of your temperament, what I call Biofoundationalism.

And to be clear: I think overturning Chevron is positive and I’m glad it’s gone. This is a reflection on how regulatory strategy recalibrates; if not guided by originalism, the moral beliefs of the judge call the shots.

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Biofoundationalism chapters:

• Biofoundationalism I: Moral Foundations Utility Theory & Hypermoralization

• Biofoundationalism II: The Moral Genotype

• Biofoundationalism III: Verbal Intelligence and Factual Sediment

• Biofoundationalism IV: Masculine Because You Have To, Feminine Because You Get To

• Biofoundationalism V: Power Acts, Beauty Is

Applied Biofoundationalism essays:

• Moral Algorithms

• We'll Give You Things > We'll Leave You Alone

• War Is How a Nation Eats

• Gain Dependents, Gain Power

• Bezos and Following the Trend

• Chevron and The Hawaiian Judge Dominant Strategy

• Pleasant-Sounding Beliefs and 2nd-Order Effects

• Patterns of Comfort

• Yarvin, Rufo, and Endless Factual Sediment

• Entwined

• Capitalism, Lions, and the Way of the Beaver

• Astrology, Darwinian Truths, and Biochemistry in the Womb