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 moral beliefs manifesting as legal rulings.

Your moral foundations leak into all value-based decisions. Political stances are repackaged versions of moral beliefs. No matter what the judge says or how many oaths she signs, her moral convictions are seeping through into her decisions.

Here are the moral foundations that inform your political ideologies:

From Jonathan Haidt

Certain methods decouple the judge’s ruling from his political stances better than others. The following are the legal doctrines of conservative vs liberal judges, 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 support your rulings if 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.”

Imposing the law should sometimes produce rulings the judge personally disagrees with. A ‘living constitutionalist’ experiences no such discomforts; the doctrine that guides their judicial conclusions regularly generates outcomes they personally support. That is not what law means, and it’s becoming increasingly common, made apparent by the hyper-politicization of the SCOTUS 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. This process should be boring and bipartisan, and it used to be treated this way. No more. This is a terrible sign.

Spoken from the man himself:

Originalism (guided by Textualism) is the only genuine attempt at decoupled legal analysis, because it best endeavors to separate the judge’s moral instincts from what the law dictates. It looks to documented circumstances, standards, and accepted practices to understand “what did this law mean at the time it was written”. It’s imperfect, but it’s the cleanest shirt in the dirty hamper of legal philosophies.

Originalism used to be the standard for all jurists. Now judges are essentially encouraged to politicize their rulings and interpret the Constitution as fluid. No longer made to impose the law as written.

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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 becomes corrupted.

Remember when that 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 obscure unelected official decided "No, I don't see it that way". What in God’s name about that is democratic?

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?

The judiciary exerts actual power over the people that lasts well beyond a president’s four years. This unelected cadre of government workers dictate legislation impacting much of our lives. Our institutions operate the same way, and their employees cannot be fired or controlled by the executive branch. When people say “Deep State”, this is what they’re referring to.

While overturning Chevron is positive, it doesn’t solve the problem of bureaucrats dictating laws. With Chevron gone, state overreach simply recalibrates. Even greater power has been handed to an increasingly partisan legal system. If not guided by originalism, the judge’s politics now slowly consume how the law is interpreted and applied.

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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