Judges as Superheroes: The Danger of Confusing Constitutional Decisions with Cosmic Battles

We live in an era of superheroes warding off cosmic catastrophe, at least if movie box office hits are any measure. The official Marvel web page for the Avengers, for example, describes that large and somewhat amorphous group as “Earth’s Mightiest Heroes” who “stand as the planet’s first line of defense against the most powerful threats in the universe.” For those who prefer logical consistency and coherent story lines, the Avengers movies may not be the best viewing choice, but logic and coherence are luxuries one cannot afford in the middle of a battle against universe-sized Evil. To insist on a calm and dispassionate examination of what makes sense misses the point.

Judges are not superheroes, although the attention paid a few Supreme Court Justices suggests some confusion on that score. Judging is, or ought to be, characterized by logic and intellectual coherence. To do the job properly, judges must be capable of thinking clearly and calmly about the questions they address—even, or rather especially, when those questions involve matters about which people (including judges) feel passionately. In no area of law is this judicial obligation to reason dispassionately more important than in constitutional law, where the political, moral, and emotional stakes are often very high indeed. The Avengers, whatever their merits as the planet’s cosmic defenders, make very poor role models for constitutional judges.