Why Do We Care? -- Reflections on Dead Judges Voting

Over at How Appealing (see here, here, here, and here), and on the ConLawProfs listserve, much virtual ink has been spilled this week, including some by me, on whether/when dead judges get to vote, given the late (and great) Judge Edward Becker's dispositive vote with the majority in this week's Third Circuit ministerial exception case, Petruska v. Gannon University. [To its credit, the conversation on ConLawProfs has recently segued from this discussion into a series of remembrances of Judge Becker, who deserves far more attention for his career accomplishments and his munificence than his vote in the case.]

Leaving aside the obvious chance to plug an earlier debate along similar lines with respect to "Circuit Justice Roberts," the wrangling over the minutiae may reasonably lead many to ask the obvious question -- who cares? That is to say, why spend so much time worrying about whether the relevant time period for a judge to cast a vote is solely the day a decision is filed, as compared to some previous point at which the panel's views became solidified? 

In many ways, I think the reason why lawyers, especially academic ones, get so into questions like this is because they go to the very core of our system, but gently at that. These are legal issues divorced, for the most part, from politics, partisanship, ideology, or, realistically, significant real-world consequences (if we assume that "fixing" the problem wouldn't alter the result), and the lesson from this week, methinks, is that that can be a good thing sometimes. Ours is a system of rules, from which the "rule of law" derives, and even the most non-substantive of these rules can raise fascinating questions about our approach to legal analysis, legal interpretation, and, indeed, legal methodology.

That is to say, the debate over Petruska has, for the most part, taken place on a level wholly divorced from the substantive questions presented in the case -- the scope and availability of the ministerial exception to Title VII, on which the decision arguably creates a circuit split (the Ninth Circuit case, as I've noted, produced one of the best puns I've ever seen in a judicial opinion, see pg. 15 of the PDF).

For sure, this isn't always true with "technicalities" -- it would be wholly spurious to claim that all debates (or even most debates) over legal technicalities are divorced from politics. And I'm sure that there are lots of better things I could've been doing this week than reading about the finer points of 28 U.S.C. [sec.] 46, digging up Learned Hand quotes ("quote Learned; follow Gus"), and fighting over what the word "determined" means in the context of the statute.

But, and I don't think I'm alone in saying this, these kinds of fights are why I like my job...