A Contrast to Scalia and Rehnquist
By Bronson C. Stephens
Bronson Stephens, a Third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.
In his The Path of Law, Oliver Wendell Holmes starts by defining the study of law as the prediction of judges’ determinations; that the whole of jurisprudence is creating prophesy and an organized system with which to make prophesy. Holmes is clear from the start that what he means by law is “the prophecies of what the courts will do in fact.”
Holmes delves into what he sees as a widespread issue affecting learning and understanding of the law. The issue is confusion over and merging of morality and law. He gives the example of viewing the law through the eyes of a “bad man,” a perspective he returns to again and again. The idea is that, to a bad man, the law is a “body of dogma enclosed within definite lines.” The bad man only values knowing the law based on the “material consequences which such knowledge enables him to predict….” This distinction is of fundamental importance when it comes to prophesizing. In this section, Holmes argues that removing morality from law is the only way to see its honest functioning structure.
He then addresses the widespread misconception “that the only force at work in the development of the law is logic.” He brings this up as an issue because the legal system cannot be “worked out like mathematics for some general axioms of conduct.” If the legal system was born of logic only, there would be clear right and wrong decisions. As Holmes points out, dissenting judges are not simply bad at the math of law. This point goes directly to the empty words spewed by justice after justice at their confirmation hearings. To maintain this way of thinking or the outward appearance of this way of thinking is not difficult to do. As Holmes wrote, “you can give any conclusion a logical form,” which is precisely why it is so difficult to push aside the rationalizations given by justices in their opinions and see what is actually going on: a judgment based on a measure of worth and importance.
Being aware of “law,” Holmes advocates for what would be viewed by Scalia and Rehnquist, but not necessarily by Posner, quite negatively, as blatant judicial activism. Further, Holmes seems to consider judicial activism as a judge’s duty. Only instead of using the term “activism,” he speaks of the judge’s duty of weighing considerations of social advantage. Once the law is boiled down, separated from the morality it is tangled with, recognized as a system requiring judges to make judgments based on conscious or unconscious attitudes--once all that becomes clear--it does appear that judges have a responsibility at least to be aware of their personal attitudes.
In the next section, Holmes criticizes the legal profession’s blind service to history. He notes that “most of the things we do, we do for no better reason than that our fathers have done them.” He argues for the promotion of reason over tradition, and a view of history’s importance as confined to “the light it throws upon the present.”
Benjamin Cardozo’s introductory lecture to his The Nature of the Judicial Process is more poetic and, as a result, a bit difficult to follow at times. Cardozo, like Holmes, notes the importance that the subconscious plays in a judge’s determinations. Cardozo states that it is a subconscious philosophy, for lack of a better word, which “gives coherence and direction to thought and action.” This is, according to Cardozo, the root cause of many judicial decisions. Truly objective ones are impossible.
In his article he attempts to state a formula which can describe and help analyze the process leading to judge-made law. He talks first about examining the law used in a judge’s opinion. At this point, he touches on the issue addressed by Rehnquist about judge made law being secondary to that made by the legislature. However, unlike Rehnquist, Cardozo does not stop there. Nor does he imply, let alone state expressly, that all deference must be given to the legislative branch. Instead he addresses the need for the judge to “fill in the gaps.” He speaks of a much more comprehensive approach to legislative interpretation: one that entails the consideration of social needs, as well as the individual and collective intent of the legislature, and that involves supplementing as well as filling in “vacant spots.”
Cardozo describes the judge who faces a legal issue where there is no legislation on point and where the Constitution is “silent,” as “Sir Oracle,” a judge who must create law. He addresses the realities of performing this task. He notes, first, the need for a judge to review precedent. If it is directly on point, the judge may not need to do more. But in the event that precedent is not directly on point, and even sometimes when it is, a judge must go further. In fact, Cardozo criticizes high court judges who fail to do so, as not worthy of their office.
Cardozo speaks of the evolving or living law, also common law. He states that it does not necessarily lead to any final truths. If the underlying principles do not hold up over time or against testing, they need to be changed. Cardozo sees this as not only the role of a judge, but as simply a reality of judging. This flies in the face of the claims by Scalia and Rehnquist, that the role of a judge, and their role as justices, is simply to be bound by the existing law and the legislature.
Cardozo argues a rational and detailed process for judges to acknowledge their unconscious drives, and consciously to choose to take control of their decision-making. He acknowledges that the method he advocates may be criticized as “intolerably vague,” and that does seem to be the greatest weakness of his discussion. However, if viewed as Cardozo’s observations, with an understanding that it is necessarily vague because it refers to a person’s own values and measurements, then it is not a weakness but another valid point. Cardozo, no doubt, would today be labeled a judicial activist by Scalia and Rehnquist. But the fact is that he has simply explained what they do and told them how to do it better.
 Oliver Wendell Holmes, Jr., The Path of Law 10 Harv. L. Rev. 457 (1897).
 Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
 William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693(1976).
 Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 Mich. L. Rev. 952 (2003).