By Laura K. BomyeaLaura 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.
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.
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.
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]
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.
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[2]
Id. at 3.
[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.
