Tuesday, March 26, 2013

Judges: Lawmakers By Any Other Name

By Laura K. Bomyea
Laura K. Bomyea is a third year student at Albany Law School.  She received her undergraduate degree from Bard College, where she studied philosophy and literature.  Laura serves as Student Editor-in-Chief of the New York Environmental Lawyer, an Associate Editor on the Albany Law Review, a Student Editor with the New York Government Law and Policy Journal, and a Research Assistant with the Government Law Center at Albany Law. She currently works as a Law Clerk with Young/Sommer LLC.
This essay was prepared for the Judicial Process Seminar, Fall 2012.

The question of the role of judges as lawmakers is best addressed by Judge Cardozo’s assertion that the process of judging is not equivalent to matching colors in a card index. Rather, there are some “principles of selection” guiding the judge in his decision-making, even if those principles are not apparent to the judge himself.[1]

A judge cannot help but be a lawmaker.  For the process of making decisions, of creating new law where none existed before, is inherent in the process of judging. That is why judging is nothing like matching colors in a card index and spitting back the best match. 

Once a judge reaches “the land of mystery when the Constitution and statute are silent” on a given issue, the real work of judging begins.[2]  Precedent does not always help. Often it is merely, as Holmes calls it, prophecy.[3]

The judge needs to make a rule, or draw the case at hand within the net of existing rules, or carve out exceptions. He needs to decide something new, even by invoking something old in a new context, and that is where he puts on his hat as a lawmaker.

From there, whatever these guiding principles may be—and from wherever it is they emerge—the judge undeniably must employ some system of valuation or philosophy of decision-making to come to some conclusion.  His decisions on these hitherto unsettled legal matters will necessarily make law according to those principles or values that comprise his (conscious or unconscious) judicial philosophy. 

All judges, even those practicing true judicial restraint, must necessarily decide the path of the law in novel cases and matters unsettled by or disputed in lower courts.  They must decide cases; they must make new law where none exists. 

Principles advanced by those who advocate judicial restraint—such as paying deference to the other, democratically-elected branches of government; having a deep distrust of overturning stare decisis without compelling reason; or strictly adhering to textualist interpretations of the Constitution—are still just that: judicial philosophies.

They are principles of decision-making. They each lead a judge to resolve problems in a certain way, and to make law in accordance with those principles. 

A decision not to change previously settled law in the face of a new or thorny problem is still a decision.  It is still making law where none existed before, extending a prior holding or rule to a previously un-ruled-upon situation. 

The Rehnquist tendency to defer to the authority of elected Congresspersons or the President where action by the democratically-elected branches does not clearly violate the Constitution[4] is still making law.  It is applying judicial principles that prefer democratic institutions over non-democratic ones. It prefers the wisdom of those elected by the populace over the wisdom of those elevated to the judiciary, in order to resolve a new or unsettled problem.  When such principles are applied to a novel situation, the decision to defer to Congress or the President in that situation is still the creation of new precedent. 

Refusing to overturn a law, for example, prohibiting gays from receiving certain public benefits because such a law does not clearly violate the Constitution, necessarily creates new Constitutional interpretation. It says that nothing contained in that document protects the rights of homosexuals.

The judicial restraintist certainly creates no new rights in this sort of decision. But it is inaccurate to say he creates no new law.

For this reason, popular use of the terms “judicial restraint” and “judicial activism,” and their association with mere virtuous application of the law to the facts on the one hand versus rampant and unprincipled creation of new law on the other, serve only to confuse the debate and should be abandoned. 

All judges are lawmakers.  Even the ones who attempt to strictly adhere to precedent, narrowly interpret guiding documents, and practice vigorous deference to the other governmental branches. 

Yet judges on both sides of the political spectrum—Scalia and Breyer for example—adamantly deny being judicial activists. Scalia and Breyer both deny their decision-making involves making new law.[5] Yet both have authored or joined in decisions which reflected judicial restraint and others which represent judicial activism.[6] 

The partisan use of this terminology—and the conservative victory in painting judicial activism as a vice and judicial restraint as a virtue—has greatly altered public perception of the judicial role. 

The objective meanings of the terms “judicial restraint” and “judicial activism” ostensibly describe judicial philosophies without a value judgment of either approach. Nevertheless, the social and political use of these terms over the past several decades has rendered them mere code words. They describe a proclivity for deciding cases in line with the Conservative or Liberal agenda, respectively. 

As outlined in the Bonventre piece, judicial restraint and judicial activism have both yielded legal decisions we champion today. Yet the popular use of these terms clouds their meaning and usage with partisan rhetoric and linguistic framing.[7]

This abuse of terminology has so divorced these terms from their original meanings, that their use no longer assists those outside the judiciary in understanding the philosophical underpinnings of judicial thought. That is, those guiding principles to which Cardozo so eloquently alluded.[8] 

If we are to better understand judicial decision-making and jurisprudential philosophy, it would behoove us to formulate more objective, more accurate ways of speaking about such matters.

[1] Benjamin N. Cardozo, The Nature of the Judicial Process 4 (1921).
[2] Id. at 3.
[3] Oliver Wendall Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 458 (1897).
[4] See William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).
[5] See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989); Richard A. Posner, Justice Breyer Throws Down the Gauntlet, 115 Yale L.J. 1699 (2006) (responding to Justice Stephen Breyer’s book Active Liberty: Interpreting our Democratic Constitution and parsing Breyer’s judicial philosophy).
[6] Posner, supra note 5; Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic (Aug. 24, 2012), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism#.
[7] Vincent M. Bonventre, Judicial Activism, Judges’ Speech, and Merit Selection: Conventional Wisdom and Nonsense, 68 Alb. L. Rev. 557 (2005).
[8] Cardozo, supra note 1, at 4.