Friday, February 8, 2013

Judicial Activism: Legal Dirty Words

By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial District Town & Village Courts and at the Appellate Division, Third Department, as well as a summer associate at Couch White, LLP.
Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.
Micky's essay is the second in the series on judges as lawmakers prepared for the Judicial Process Seminar, Fall 2012.

Any implication that a judge is engaging in judicial activism is anathema to most judges.[1]  Judges don’t make law. Judges render decisions based solely on the application of black letter law to the facts of any given case.

According to Posner, “[j]udges tend to deny the creative—the legislative—dimension of judging . . . because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis.”[2]

But no matter how hard judges try to deny it, whether they realize it or not, judicial lawmaking is inescapable.  Judges are not independent arbitrators free of the influences pervasive in society.  Judges “may try to see things as objectively as [they] please,” counsels Judge Benjamin Cardozo, but “[n]one the less, [they] can never see them with any eyes except [their] own.”[3]

Judges are as susceptible to their perceptions and beliefs as any other human being.  Personal preferences and ideas of justice and fairness do not stop at the chambers door.

Consequently, “judges cannot escape judging,” says Albany Law Professor Vincent Bonventre. “Judges necessarily engage in lawmaking. Their own convictions and philosophical outlooks necessarily influence their decisions.”[4]

Even those judges that advocate against judicial activism engage in judicial lawmaking—unconsciously or otherwise. And their decisions are often based on their personal philosophies.

While endorsing “originalism,” Justice Scalia warns that “the main danger in judicial interpretation of the Constitutionor, for that matter, in judicial interpretation of any lawis that judges will mistake their own predilections for the law.”[5] Perhaps.

But what Scalia fails to recognize, or refuses to publicly admit, is that “originalists” do the same thing.  When Scalia looks at the text of the Constitution to discern its “original” meaning, Scalia is interpreting the language based on what he thinks the drafters intended, which necessarily incorporates his own preconceived philosophy of the law.

Scalia subconsciously assigns a value to the “original” meaning of the Constitution and weighs that more heavily than anything else.  In doing so, Scalia is engaging in a value-based analysis the same as those judicial activists he disparages.

Rehnquist, who promoted a philosophy of judicial restraint, commented that “[t]here is obviously wide room for honest difference of opinion over the meaning of general phrases in the Constitution." He continued that "any particular Justice’s decision when a question arises under one of these general phrases will depend to some extent on his own philosophy of constitutional law.”[6]

Rehnquist cautioned, however, that when that occurs, “[j]udges then are no longer the keepers of the covenant." Instead, according to the late Chief Justice, the judges "are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country.”[7]

Since Rehnquist advocated for judicial restraint, he saw judicial lawmaking as problematic. He viewed it as placing the philosophies and principles of the judges over those of the people. And that’s not democratic.

Much like, Scalia, Rehnquist failed to acknowledge that his position on the Court necessarily entailed the weighing of value judgments. Rehnquist weighed “democracy” more than other social values.

As Justice Holmes so eloquently stated, in a form now characteristic of much of Posner's observations, “[b]ehind the logical form lies a judgment as to the relative worth and important of competing legislative grounds, often an inarticulate and unconscious judgment.”[8]

Judges, for a variety of reasons, may not want to admit that they engage in lawmaking. They may not even understand that they are doing it.But there is no denying that every judge engages in judicial lawmaking, in the values they assign to certain principles, whether it be judicial deference, or judicial activism, law and order, or promotion of civil liberties.

It may be inarticulate.  It may be unconscious. But it is certainly always there.

[1] “Judges and judicial nominees typically shun the label of activist.  They, the politicians, and much of the legal community extol the virtues of restraint.”  Vincent M. Bonventre, Judicial Activism, Judges’ Speech, and Merit Selection: Conventional Wisdom and Nonsense, 68 Alb. L. Rev. 557, 563 (2005).
[2] “Judges like to say . . . [t]hey do not make law: that is the job of the legislators, and for authors and ratifiers of constitutions.”  Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012).
[3] Benjamin N. Cardozo, The Nature of the Judicial Process 2 (1921).
[4] Bonventre, supra note 1, at 574.
[5] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989).  “Non-originalism, which under one or another formulation invokes “fundamental value” as the touchstone of constitutionality, plays precisely to this weakness.  It is very difficult for a person to discern a difference between those political values that he personally thinks most important, and those political values that are “fundamental to our society.”  Id.  Scalia admits, however, that "[a]voiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely.”  Id.
[6] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 697 (1976).
[7] Id.
[8] Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 465 (1897).