Zalman Rothschild (Yeshiva University - Benjamin N. Cardozo School of Law) has posted The Myth of Objectivity in Cruzan and Heller (Géraldine Gadbin-George, Yvonne-Marie Rogez, Armelle Sabatier and Claire Wrobel, eds., The Dark Sides of the Law: Perspectives on Law, Literature, and Justice in Common Law Countries (Houdiard Editeur) on SSRN. Here is the abstract:
Judges like to think that interpreting the Constitution is value-neutral. In this chapter, I join the chorus of scholars who argue that judicial objectivity is (often) a delusion: judges often do not rely on objective standards to adjudicate. I observe this delusion in two specific Supreme Court decisions: Cruzan v. Director, Missouri Department of Health and District of Columbia v. Heller. In Cruzan, three justices, writing majority, concurring, and dissenting opinions, each ground their arguments in supposedly objective criteria, such as the process of weighing the risk of prematurely terminating a life, while in fact implicitly relying on subjective criteria, such as the notion that biological life is unconditionally sanctified. In Heller, Justice Scalia’s explicit rejection of judicial “interest-balancing” as a subjective process does not prevent him from implicitly engaging in such subjectivity himself. Asking why judges make claims to objectivity despite their reliance on subjective criteria, I suggest that Nietzsche’s notion of myth, as an expression of the human need to view the world as comprehensible, helps to explain this judicial delusion.
