Thursday, November 17, 2011

A Reasonable Path to a Just Result

Cardozo's and Holmes' Counter to Judicial Restraint
By Molly C. Casey

Molly Casey, a third year student at Albany Law School, is a Senior Editor for the Center. She works in the New York State Legislature as a Legislative Aide to Senator Lee M. Zeldin. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Benjamin N. Cardozo wrote The Nature of the Judicial Process,[1] while serving on the New York Court of Appeals, six years before he rose to the position of Chief Judge, and eleven years before he succeeded Oliver Wendell Holmes, Jr. as an Associate Justice on the United States Supreme Court. In this article, Cardozo discusses the role of the judiciary and the processes it employs in the contexts of statutory interpretation and the evolution of case law.

Cardozo’s view of the purpose and function of the judiciary runs counter to judicial restraint, the theory advocated by such other renowned justices as Antonin Scalia and William Rehnquist. While an unequivocal endorsement of judicial activism should not be read into Cardozo’s article, he does at one point use the metaphor of the judge as an “artist” to suggest that on some level he endorses a more activist approach.

With respect to statutory interpretation, Cardozo articulates the role of the judiciary as filling in the gaps and clearing up ambiguities in statutes created by the legislature. Statutes are often “fragmentary, ill-considered and unjust” and the judge must act as the “interpreter for the community of its sense of law and order.” The judge cannot simply apply the law to the facts because the law, as articulated by the legislature, is incomplete. Nor may the judge exercise restraint because there is no authority restraining him.

Judicial restraint restricts the judge to what is expressly set forth in the Constitution or statute, or possibly to what the judge believed the framers or the legislature intended. Cardozo advocates something much more than this. He says “interpretation becomes more than the ascertainment of the meaning and intent of lawmakers whose collective will has been declared.” He even goes as far to declare that codes and statutes “threaten the judicial function with repression and disuse and atrophy.”

Additionally, Cardozo endorses the view that the personality of the judge is the sole means of preserving justice and notes that the Constitution is a document that varies through the ages and that judges must only reach behind the transitory to the permanent canons that lie beneath any specific language that no longer serves the interest of justice. In this, Cardozo strongly advocates for judges to be freed from the limitations that judicial restraint necessitates.

Cardozo devotes most of his article to judicial interpretation of case law, which is done in two steps. First, the judge must find the underlying principle in the decision(s) that he is looking to as precedent. Then, he must determine the path along which the principle should develop.

The first path, “the rule of analogy,” utilizes a natural and logical succession of rules and principles and stresses predictability and stare decisis. The idea here is that judges must adhere to precedent because litigants rely on an even-handed administration of justice and a divergence from precedent would punish them for this reliance. This path is inconsistent with judicial restraint as well because although the court holds itself to its prior decisions, when this method is used in conjunction with the other three paths – “the method of evaluation”, “the method of tradition”, and “the method of sociology” -- historical development, customs of the community and the justice, morals, and social welfare of the day are also taken into account.

When the three paths diverge and point to seemingly different outcomes, the court is able to reach a result that satisfies more than one path, or at least it is able to reach a result that doesn’t completely deconstruct any path. Essentially, the paths are not mutually exclusive and in instances where conflicting results are reached, the judge is expected to look at “social interests” in making the ultimate decision, which is certainly not something countenanced under judicial restraint.

Cardozo’s explanation of the judicial process seems to advocate a result whereby various interests that must be considered in reaching a just decision are harmonized. His view also seems consistent with the view in the speech, “Judicial Activism, Judges’ Speech, and Merit Selection: Conventional Wisdom and Nonsense,”[2] delivered by Professor Vincent Bonventre at the Albany Law Review Symposium in 2005. In this speech, Professor Bonventre gives examples where judicial activism, commonly thought of as “illegitimate,” or an “abuse of judicial power,” has led judges to make some of the most cherished decisions in modern jurisprudence while judicial restraint, the more seemingly legitimate theory has led to disastrous consequences that were later overruled. The examples in the speech of the disastrous decisions that resulted from judicial restraint would likely have been avoided if the justices had taken a more reasonable, and well-rounded, approach such as by using the methods endorsed by Cardozo.

The view espoused by Justice Oliver Wendell Holmes also conflicts with judicial restraint, perhaps even more than Cardozo. In The Path of the Law,[3] Holmes does not reach the depths of methods of judicial process that Cardozo’s article does, as he focuses more on the impact of law on society and what the law means in society; the limits of law and the forces determining the content and growth of law. These ideas are relevant to the study of judicial process inasmuch as judges, at least in Holmes’s opinion, are responsible for creating and affecting the laws.

Holmes believes that judges are responsible for weighing social considerations, going as far as to call it their “inevitable duty.” This is a quasi-endorsement of judicial activism. Holmes goes on to endorse the view that judges should be broad in their interpretations and must reduce a case to a rule, which they then apply. Holmes says that the court is charged with discerning the basis for the prophecy, which is similar to Cardozo when he says that courts should find the underlying propositions in the precedent they look to, and rely upon. This is more of an activist view, as it allows the judge to change the decision to fit with current societal considerations without disturbing the proposition on which the prior case law is based.

Holmes also says that in order to gain a liberal view of the subject -- which in his view is desirable -- one should also consider the ends which the existing rules sought to effectuate and weigh why they are desired, what is given up to gain them and also whether they are worth the price. While he does not expressly say that judges should consider the ends that will come as a result of their decision, this result-focused method of understanding would logically result in an endorsement of this view.

Holmes and Cardozo offer alternate viewpoints to those expressed by Rehnquist and Scalia in terms of judicial activism versus judicial restraint. Cardozo’s article is the least polar, with Rehnquist and Scalia on the far side of judicial restraint and Holmes nearing activism. Cardozo’s approach is seemingly the most reasonable because it is not as prone to abuse as Holmes’s method and is more easily applied than Rehnquist and Scalia’s methods since it allows the judges the most available options to formulate a decision.

[1] Benjamin N. Cardozo, The Nature of the Judicial Process, New Haven, CT: Yale University Press, 1921.
[2] Vincent Martin Bonventre, Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense, 68 Alb. L. Rev. 557 (2005).
[3] Oliver Wendell Holmes, Jr., The Path of Law, 10 Harv. L. Rev. 457 (1897).