Wednesday, January 30, 2013

What's Wrong With Judicial Lawmaking Anyway?

By Benjamin P. Pomerance
Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.
Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project. He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication. Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter. He has previously been published by the Center for Judicial Process. (See Original Sin? Why a Prescription of Originalism as a Judicial Cure-All Falls Short of the Promised Remedy, 9/29/2012.)
One more thing, he organized an extraordinary symposium for the Law Review on Free Speech. It is no exaggeration that Ben planned and executed one of the very best events in my 22 years at Albany Law School.
This essay by Ben is the first in the series on judges as lawmakers prepared in the Judicial Process Seminar, Fall 2012.

Here’s the dirty little secret: Judges make law.

Actually, it isn’t much of a secret. The cat has been out of the bag since at least 1897, the year of Justice Oliver Wendell Holmes, Jr.’s seminal essay The Path of the Law.[1]

“Theory is my subject, not practical details,” Holmes wrote.[2] Then, a few lines later, he continued, “[t]heory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject.”[3]

In other words, simply applying law to facts and reaching an obvious conclusion cannot decide the vast majority of cases. The cases are not obvious, and the decisions are tough. And in order to reach them, judges must interpret the constitutional and statutory provisions to reach an answer. All of which leads to one unavoidable conclusion: Judges making law.

Many of the great judges recognize this reality. Holmes gave way to Benjamin Cardozo,[4] whose mantle of judicial realism has been taken up by today’s pragmatists like Richard Posner.[5] These judicial luminaries have stated—not as a confession but as a fact of life—that their job implicitly comes with more than a little bit of lawmaking.

Cardozo spoke freely in his celebrated lecture series, The Nature of the Judicial Process,[6] about his own use of value judgments and societal foresight and sensibilities in deciding cases.[7] He talks about the many ingredients that go into his decisions: logic, justice, sentiment, and reason.[8] Posner essentially does the same when criticizing the hard-line ideological stances of Justice Scalia and Justice Breyer.[9]  Get over it, he seems to be saying.  We know you make law.  And it’s okay.[10]

Of course, plenty of judges, politicians, and judicial observers stridently argue that it is not okay.[11]  They shout that a branch of government with members not democratically elected should not be influencing the work better left to Congress and the President.[12]  They point out that the judiciary, that entity that Alexander Hamilton once said should be the least dangerous branch because it would have control over neither the sword nor the purse,[13] has expanded its authority far beyond its constitutional powers.

They wield the term “judicial activist” with the same type of distain that Ronald Reagan once used whenever he said the word “liberal.”[14]  And there is a certain degree of appeal to their arguments.  After all, this is America, land of democracy.  We don’t want a bunch of people in black robes making law for us.  That’s the work of our elected representatives.  When judges start forming our public policies, it’s the first step backward toward a dictatorship, or at least oligarchy.[15]

So for Justice Scalia[16] and Justice Clarence Thomas[17] and Judge Robert Bork[18] and all the rest of the judicial leaders who claim not to make law from the bench, here’s a suggestion: Get rid of the court system.  Eliminate it.  If you want to be certain that judges do not make law, then expunge judges from society.

That’s the only way to get around this fear of judges influencing America’s public policies.  There is no in-between stance.  As long as judges exist, and as long as judges are allowed to carry out their function of deciding cases, the judiciary will make laws, at least to some extent.[19]  That, as Holmes and Cardozo and Posner and others have rightfully noted, is the bottom-line truth.[20]

And yes, even the so-called “originalists” of the judicial world make laws.[21]  Every time an “originalist” judge looks back at what the Framers’ intentions might have been, he or she is forced to make a difficult interpretive decision interpreting the law in its historical context.  Absent a séance with James Madison, this will ultimately involve the judge putting his or her own stamp on the decision, reaching whatever outcome the judge feels is proper.

It cannot be avoided.[22]  No judge can be exactly certain that his or her opinion is completely in line with what the Framers originally intended the Constitution to mean.[23]  Historical evidence can take a person only so far toward deciding a situation in the present day.

At a certain point, the judge must make a choice.  This is where “making law” comes into play.  Both originalists and “non-originalists” wind up “making law” in the end.[24]  It is just a question of method.

Yet here’s the other part of the equation: Making law from the bench has not destroyed American society.  From the days of Chief Justice John Marshall[25] onward to the present, many of the fundamental questions of our nation—and the scope of many of the basic rights which we now enjoy in this country—have been determined by the bench; inter-racial integration of schools and public facilities;[26] limits on government intrusions into our private affairs;[27] protection of some of the most controversial forms of speech and expression imaginable;[28] safeguards of the free exercise of religion.[29]

Now, before the all-too-common cries of “liberal activist judges” emerge, consider some of the other major decisions by the Supreme Court in recent memory. Judgments where the Constitution did not provide a straight answer. Where the judge was forced to make a difficult call about how to interpret the law (a.k.a “making law” by this decision to interpret the law of our land in a certain significant way).

Broader protection for the rights of gun owners certainly does not qualify as a “liberal” cause, but the Court’s decision in D.C. v. Heller definitely construed a novel interpretation of the Second Amendment.[30]

Narrowing the scope of the Fourth Amendment, so that only warrantless physical tresspass by the government on private property qualifies as an unreasonable search, threw out decades of precedent. Yet this is what Justice Scalia did with his majority opinion in United States v. Jones.[31]

Determining that the First Amendment does not cover speech made by a government employee in the workplace is not exactly a liberal view. But the Court did exactly that in Garcetti v. Ceballos.[32]  And the list goes on and on.

Ironically, America—a nation strongly committed to a free market economic system—pales at the notion of a marketplace of ideas.  Yet this, as Cardozo aptly points out, is at the crux of judicial decision-making.[33]

Each decision that goes beyond the obvious black-letter law is an experiment, taking that portion of American law in a particular direction.[34]  Over time, subsequent decisions test the legitimacy of that experiment’s results.[35]  Those holdings that stand these tests survive as part of our legal structure.[36]  Those that do not are rejected, just as scientists would discard a hypothesis that could not withstand repeated trials.[37]

A free market business structure casts off commercial ideas that find little support in the marketplace.  Our judicial structure, a free market of competing principles and ideas, functions in much the same way

This does not mean that the Constitution should be abandoned.  It does not mean that the words of the laws passed by Congress should be discounted.  It does not mean that judges should ignore past precedent.

Obviously, a judge should still look to the law first and foremost in rendering a decision.  Stare decisis is still our legal system’s point of departure.

Yet when the law is unclear or silent, or when the case at hand does not neatly fit a past precedent, or when that precedent simply has no place any longer in contemporary America, a judge cannot rely on the text and the precedents alone.  That is where the process of “making law” must come into play.

If a judge is to do his or her job properly—if a judge is, in the words of Cardozo, “worthy of his [or her] office”[38]—then there simply is no way of avoiding it.  Not only can it be done, but it must be done.[39]

And because it is done, because America has a system that allows for the virtue of judicial decisions to be determined through rigorous testing in the marketplace of ideas, the nation is better for it.                  

[1] Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897). 
[2] Id. at 477.
[3] Id.
[4] Cardozo was appointed to the Court by President Hoover in 1932, filling the seat that had been vacated by Holmes.
[5] The highly acclaimed Seventh Circuit Court of Appeals Judge and University of Chicago Law School professor is an outspoken admirer of Holmes. In fact, it was Judge Posner who was responsible for compiling, editing, and writing the foreword to one of the finest collections of Holmes’s writings. See The Essential Holmes (Richard Posner, ed., 1992).    
[6] These four lectures were all delivered in 1921 by Judge Cardozo at Yale University.  Today, the four speeches are contained in a single anthology.  See Benjamin N. Cardozo, The Nature of the Judicial Process (1921). 
[7] Among the most revealing of many memorable lines is this gem of straightforward brilliance: “I take judge-made law as one of the existing realities of life. There, before us, is the brew. Not a judge on the bench but has had a hand in the making.” Id. at 11.
[8] See id. at 45.
[9] Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic (Aug. 24, 2012),  
[10] See id.  In discussing the problems facing a judge who refuses to engage in any form of lawmaking, Posner wrote that “[d]ictionaries are mazes in which judges are soon lost.  A dictionary-centered textualism is hopeless.”  Id.  See also Vincent Martin Bonventre, Judicial Activism, Judges’ Speech, and Merit Selection: Conventional Wisdom and Nonsense, 68 Alb. L. Rev. 557, 574 (2005) (“Judicial activism is not an unmitigated vice; restraint is not an unqualified virtue . . . To deny that bold exercises of judicial activism have produced some of our proudest and wisest landmarks, and that steadfast restraint has produced some of our most foolish and shameful blunders—as well as vice versa—is either blind ideology, woeful ignorance, or some other specie of nonsense.”).  
[11] See, e.g., Randy Barnett, Restoring The Lost Constitution: The Presumption of Liberty (2003); Paul O. Carrese, The Cloaking Of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (2003); Robert Bork, The Tempting of America: The Political Seduction of the Law (1997); Clarence Thomas, Judging, 45 U. Kan. L. Rev. 1 (1996); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).  And this is truly only the beginning of the litany of literature on the topic of “activist judges.”    
[12] See note 11, supra.
[13] The Federalist No. 78 (Alexander Hamilton) (1788).
[14] See notes 10 and 11, supra.  Ironically, many of the jurists who today the criticism of “judicial activism” are Reagan appointees to top federal court positions, such as Justice Antonin Scalia and Judge Robert Bork.   
[15] See, e.g., the arguments made by the authors cited in note 11.  Again, though, this is just the tip of the iceberg regarding the literature on this subject.
[16] See Scalia, supra note 11, at 855–57.
[17] See Thomas, supra note 11, at 6.  Here, Thomas states that even in the toughest cases before the Supreme Court, there is an ultimately “right” and “wrong” way to decide the case.  See id.  The goal, he writes, is always to seek ways to limit judicial discretion in ruling on a case.  Id.  If a judge’s discretion is constrained, then he or she will be less likely to interject personal views into judicial opinion.  Id.  Unfortunately, Thomas does not explain how a judge can avoid interjecting personal viewpoints in those tough cases where a decision must be made between two competing and perfectly legitimate points of law.  It would seem that in such cases, courts with even the shortest leashes will ultimately resolve matters based to large extent on their personal beliefs.     
[18] See Bork, supra note 11; see also Robert Bork, Slouching Toward Gomorrah (2003); Robert Bork, Activist Judges Strike Again, Wall St. J., Dec. 22, 1999, at A18 (stating that Vermont’s protection of homosexual unions typified the “activism [that] is now raging in state courts.”).   
[19] See, e.g., Bonventre, supra note 10, at 575 (“Except, perhaps, at the lowest levels and in the most routine cases, judges necessarily engage in lawmaking, their own convictions and philosophical outlooks necessarily influence their decisions, and their politics are in fact exceedingly important to those interested in the cases and issues they decide.”).   
[20] See, e.g., all sources in notes 1, 6, 7, and 9.
[21] In fact, the “originalists” are, by some definitions, the most active “activists” of all judges.  See, e.g., Paul Gewirtz & Chad Golder, So Who Are The Activists?, N.Y. Times, July 6, 2005, (noting that Justice Thomas voted to overrule Congressional statutes more than anybody else on the Court, and that Justice Scalia was close behind him in this category).
[22] Justice Scalia admits as much.  See Scalia, supra note 11, at 865 (stating that even he can be a “faint-hearted originalist” in certain particularly close cases).    
[23] In addition to the sources already cited, a fine discussion of this point came from retired United States Supreme Court Justice David Souter’s 2010 commencement address at Harvard.  “The Constitution is a pantheon of values,” Souter stated, “and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.”  See Hon. David Souter, Address at Harvard University’s 359th Commencement (May 27, 2010),
[24] “If (obtaining answers merely by applying precedents to facts) were all there was to our calling, there would be little of intellectual interest about it,” Cardozo wrote. “The man who had the best card index of the cases would also be the wisest judge.” Cardozo, supra note 6, at 21.   
[25] Indeed, the seminal case of Marbury v. Madison and its impact on the court system can easily be viewed as an example of “activism.”  
[26] See, e.g., Brown v. Bd. Of Educ., 347 U.S. 483 (1954) (ordering the integration of public schools); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (requiring integration of public facilities engaged in interstate commerce, like hotels, under Congress’s Commerce Clause powers); Katzenbach v. McClung, 379 U.S. 294 (1964) (ordering integration of restaurants under Congressional Commerce Clause authority).
[27] See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) (holding that evidence obtained from an illegal intrusion into an individual’s home is not admissible at criminal trial); Griswold v. Connecticut, 381 U.S. 479 (1965) (striking down state law forbidding use of contraceptives as a violation of a constitutional “right to privacy”); Katz v. United States, 389 U.S. 347 (1967) (extending Fourth Amendment protection to any place where an individual has a “reasonable expectation of privacy”); Lawrence v. Texas, 539 U.S. 558 (2003) (overturning state statutes criminalizing homosexual sodomy, even inside the privacy of the home).   
[28] See, e.g., N.Y. Times v. Sullivan, 403 U.S. 713 (1971) (preventing government censorship of materials regarding decisions made during the Vietnam War); Texas v. Johnson, 491 U.S. 397 (1989) (holding that burning the American flag as a symbol of protest was protected under the First Amendment); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down ordinance preventing certain types of offensive speech based on gender, race, and religion); Snyder v. Phelps, 562 U.S. __ (2011) (upholding right to stage a protest at military funerals).  
[29] See, e.g., Engle v. Vitale, 370 U.S. 421 (1962) (holding that prayer in public schools was unconstitutional); Sherbert v. Verner, 374 U.S. 398 (1963) (determining that an employer violated the First Amendment by firing an employee for refusing to work on her faith’s Sabbath); Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that law mandating school attendance for all children was unconstitutional when it conflicted with religious beliefs held by Amish families).  
[30] 554 U.S. 570, 636 (2008) (finding that the Second Amendment recognizes an individual right to bear firearms and use them for “traditionally lawful purposes”).
[31] 565 U.S. __, 132 S.Ct. 945 (2012).
[32] 547 U.S. 410 (2006).
[33] See Cardozo, supra note 6, at 22.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at 20.
[39] Or, in the words of Justice Souter:
 “If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.”
Souter, supra note 22.