Monday, March 4, 2013

Judges as Lawmakers: An Inescapable Reality

By Joanna Pericone
Joanna Pericone, a third year student at Albany Law school, studied political science as an undergraduate at LeMoyne College.  Before attending law school, Joanna worked for the New York State Assembly in the communications office.  During law school, she has worked as a law clerk at the Albany County District Attorney's Office, and as a judicial extern for the Honorable Lawrence Kahn.  Currently, Joanna serves as a law clerk in the Albany law firm of Ganz Wolkenbreit & Seigfeld.  Joanna is also the Chair of the Domenick L. Gabrielli National Family Law Moot Court Competition and a Senior Editor on the Albany Government Law Review.
Joanna's essay was prepared for the Judicial Process Seminar, Fall 2012.

The common conception regarding the role of judges and the courts is that judges should not be making law.  As the unelected branch of our government, judges should defer to the decisions of the populous unless those decisions are a clear violation of the federal Constitution.  

Judges themselves have even perpetrated this impression by publicly rejecting the idea that they do more than simply apply the black letter law to the facts of a case to reach their decisions.  In those cases, judges do not want to be labeled as “activists,” because the notion of a judge creating law is unfavorable and seen as an abuse of judicial power.  

In the course of the study of judges and the judicial process, however, it is apparent that despite whether they recognize it or not, judges do more than “umpire,” in the words of Chief Justice Roberts.[1]  Rather, they often interject their own ideologies into the decisions that are being made.

In the beginning of the century, Justice Benjamin Cardozo gave a lecture at Yale University where he openly acknowledged that “judge-made law [is] one of the existing realities of life.”[2]  Cardozo articulated in his lecture that not every case is black and white and easily applicable to precedent.[3]  If a case were easy, it would never reach the high courts.

Justice Cardozo explains that the role of the judge is to “fashion law” when there is no precedent and take into consideration how it will impact the future.[4]  He also notes that aside from creating laws, the role of a judge is to also re-examine and tinker with old laws to ensure that they withstand the test of time.  

In other words, Cardozo does not believe judges should blindly apply precedent for the sake of it being precedent, but judges should always consider where the rule originated and whether it is still good to adhere to it.[5]  

It is a fact, argues Cardozo, that judges make laws, but it may be hard to notice because it is not necessarily happening quickly.  There may not be an enormous Brown v. Board of Education overhaul, but rather a gradual change to the law.[6]  

Justice Cardozo believes that a good judge must have the courage to make choices and judgments.  Doing so results in the creation of law, whether the judge knows it or not.[7]  

Ultimately, judges cannot escape making decisions based on their personal convictions any more than a regular person can and although they would like to be perceived as purely objective, their personal ideologies will always guide them through their decisions.[8] 

Justice Oliver Wendell Holmes shares the same theories as Justice Cardozo on the realities of judge made law.  In a lecture that Holmes gave at Harvard he talks about the failure of law schools in the respect that they teach black letter law instead of showing students how to balance issues.  According to Holmes, this explains why judges are unwilling to acknowledge, or unaware of the fact, that they are indeed creating law.[9]

Further, he echoes Cardozo’s insistence that judges cannot escape making decisions based on personal philosophy.  Holmes comments that it's misleading to perpetuate the belief that judicial opinions are purely based on logic because judges frequently interject their ideologies into their decision making.[10]

Judge Richard Posner from the 9th Circuit also aligns his views about judge made law with Justices Cardozo and Holmes.  Posner endorses a judicial philosophy of practicality and is unwilling to participate in the farce that judges are nothing more than arbitrators.[11]  

Posner believes it is absurd for judges and the courts to express that they make decisions based purely on precedent.  He says that judges who try to convince others that they do not make law, but only apply the law still are able to twist their interpretation of the precedent to create rules that are in line with their ideologies.[12]  

Posner advocates common sense approaches to decision making and believes it is an absolute misconception and deception for judges to broadcast that they do not create law, nor do their own traditional beliefs or ideologies guide their decisions.

Justice Antonin Scalia’s approach to judicial interpretation is in direct contrast with the philosophies of Cardozo, Holmes and Posner.  Scalia publicly rejects the idea that judges create law.  Instead, Scalia insists that the judicial decisions he makes are purely objective, based on a strict and narrow reading of statutory and constitutional provisions.[13]  

The objective interpretation Scalia endorses is a theory of originalism, which emphasizes the original meaning of the words in the Constitution, as well as the contemporaneous understanding of the Constitution by the First Congress and the leaders of the Constitutional Convention.  Justices who contend that they utilize an originalist interpretation insist that they do not set aside precedent but rather, make decisions based on established law.  

Judges and courts like Scalia say that they embrace originalism because it is “consistent and coherent.”  The words in the text of the Constitution and the values of its framers are fixed at the time of the Constitution’s ratification.  Therefore, the results will always be the same.[14]

This philosophy also allows Scalia to maintain that by adopting a strict interpretation, he does not at all interject his own personal beliefs into his rulings.[15]  If Scalia is simply applying the law, then there is no room for his personal beliefs to sway his decision.  

This is of course, as Posner would point out, absurd because even bright line rules can be interpreted in ways influenced by a judge’s personal beliefs so that the outcome of the decision aligns with the judge’s ideologies.  This may be a situation where, as Cardozo and Holmes say, the judge is in denial that his beliefs are impacting his decision making.  It seems deceitful to try and convince your audience that you are making completely objective decisions when such a thing is impossible, given the human nature to be influenced by our backgrounds and traditions.

The judicial philosophy of former Chief Justice William Rehnquist reveals that he is not in favor of judge made law, and he believes the role of a judge is to review, not to create law or policy.[16]  Rehnquist advocates that justices practice a form of “judicial restraint,” whereby they defer to the other two branches of government unless their policies offend critical principles of the federal Constitution.  

In an article Rehnquist wrote in 1976 for the Texas Law Review, he cited to the Dred Scott case to explain his belief that it is an abuse of power for judges to disregard the decisions of the populous by instead inserting their own ideologies.[17]  Rehnquist was not in favor of giving the courts that power.  Rather, he advocated for a limited role of the judiciary to prevent judges from using their own values to make rulings.  

Rehnquist's strict interpretation, however, does not allow him to analyze the law.  It does not permit him, like Cardozo advocates, to look at the underlying history and principles of the precedent to determine whether it should be the law in the first place.

Although judges and the courts may deny that they create law, the nature of making judicial decisions makes it impossible for that to be the reality.  Making law or being “judicially active” should not imply that judges are abusing their power and ignoring the decisions of the other branches.  

Society should not value a strict restraintist position because the precedent might be antiquated and its application may result in bizarre results.  Precedent is not necessarily bad, but the role of a judge may be to go beyond identifying the black letter law and examine its principles to determine whether the law still makes sense.  

This analysis is where judges create law.  Often times the analysis of the underlying principles is influenced by a judge’s personal beliefs and opinions which are, contrary to the opinions of judges like Scalia and Rehnquist, inescapable.

[1] Chief Justice John Roberts, Opening Statement at his Nomination Hearings before the Senate Judiciary Committee (Sept. 15, 2005),
[2] Benjamin N. Cardozo, The Nature of the Judicial Process 1 (1921).
[3] “Some judges seldom get beyond [stare decisis] in any case.  Their notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk.  The sample nearest in shade supplies the applicable rule.”  Id.
[4] “. . . [W]hen there is no decisive precedent, that [is when] the serious business of the judge begins.  He must then fashion law for the litigants before him.  In fashioning it for them, he will be fashioning it for others.  Id.
[5] Id.
[6] “This work of modification is gradual.  It goes on inch by inch. Its effects must be measured by decades and even centuries.  Thus measured, they are seen to have behind them the power and the pressure of the moving glacier.”  Id.
[7] Id.
[8] “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action.  Judges cannot escape that current any more than other mortals.”  Id.
[9] Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).
[10] Id. at 461.
[11] Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012).  “Judges tend to deny the creative—the legislative—dimension of judging, important as it is in our system, 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.”
[12] See id.
[13] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989).
[14] See id. at 855.
[15] See id. at 863.
[16] William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 696 (1976).
[17] See id. at 700−01.