Wednesday, October 7, 2015

The Difference Between the Activism of Judges and the Activism of Legislators in Our Constitutional Democracy: a Tutorial for our Political Class

From time to time it is the fashion among politicians to accuse judges of "judicial activism" as if that were a bad thing. But in our system of government it is axiomatic that both legislatures and judges are "active" in creating law. But they are not "active" in the same way.

During oral argument on Obergefell v. Hodges (the case that said all states must recognize gay marriage), Elena Kagan noted that "we don't live in a democracy, we live in a constitutional democracy." What this means is that the constitution imposes limits on what legislatures can do, and the courts identify where those limits are.

The four dissenters in Obergefell pretended like they'd never heard of this concept, and that the majority was somehow usurping the democratic process. See my earlier post here. The decision "usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” said Justice Alito; "who do we think we are" said Chief Justice Roberts; and "today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” added justice Scalia.  [Scalia has an acerbic sense of humor; his formulation is funny, if you go for that kind of thing, because we all know that Scalia thinks that outside the four corners of the constitution his "Ruler" is God and not the American people]  And, of course, politicians routinely talk smack about "activist judges."

But it's the role of the courts to protect constitutional rights and to draw lines around those rights that legislatures may not cross. It's true that the Supreme Court arrogated that role to itself without express constitutional authority in Marbury v. Madison (1803), but that was 212 years ago and the court has been doing it ever since.  Get over it!

And the fact that judges are active in creating new law independent of the democratic process is with us not just when courts are policing the lines of our constitutional democracy, but also when they carry forward the common law tradition.

The American legal system is based on English common law. This means that many of the rules that govern private conduct are judge made rules from the get go. What is a contract, what is trespass, what is a nuisance, what is an assault? What are remedies for harm caused by accidents, barroom brawls, defective products, breach of contract, or fraud? All of these are questions historically decided by judges in our legal system. These judge made rules date back, if we want to draw a line, to William the Conqueror and the Norman invasion of England in 1066 A.D.  Judges in our system of jurisprudence have been active in making and shaping law ever since.

Legislatures are active in legislating statutes. Judges are active in carrying the legal tradition forward.  So how are they different?

Legislatures take their cue from voters, from lobbyists, or from their own notions in order to address what they perceive as a problem, or to advance what they perceive to be a good.  Legislators are free to propose laws as they see fit. They can move forwards, backwards, sideways, up, or down, in big steps or small as they, their constituents, their lobbyists, or their campaign contributors deem beneficial or advantageous. They can be partisan, they can take sides, they can be petty or grand. They can be careful or not. They don't have to be objective in their fact gathering. They can be arbitrary and capricious. All they have to do is convince a majority to go along, or be sneaky in slipping a provision into a larger bill where it won't be noticed.

Judges do not make new law the same way legislatures make law. Judges can not address problems as they see fit: they can only address problems that are brought to them in a justiciable form.  Judges cannot move forwards, backwards, sideways, up, or down as they wish: they are constrained by what has gone before; they are constrained by the facts of the dispute. Judges must be impartial, fair, and just: they cannot act like legislators doing the bidding of campaign donors. Judges have to be careful and reasoned. Their reasoning is in writing and subject to scrutiny.

Judges are constrained by tradition. Ronald Dworkin had a metaphor for the constraint legal tradition puts on judges. They are engaged in a process that is like writing a chain novel, in which "every writer but the first has the dual responsibilities of interpreting and creating because each must read all that has gone before in order to establish, in the interpretivist sense, what the novel so far created is." This novel must make sense. A novel written by legislation does not need to make sense.

I got this from Roberta Kwall's bookThe Myth of the Cultural Jew, and she goes on to quote (p. 26) the legal scholar Paul Berman:
In an insightful explanation, Berman notes that 'Dworkin's model requires the interpreter to treat herself as a 'partner' in the endeavor being analyzed.' Under this framework, the interpreter must understand the essence of the prior endeavor so she can generate new interpretations that are within the boundaries of the enterprise. Such an interoperation differs from a "suspicious" reading of the tradition because it does not seek to undermine the tradition or ignore its meaning and relevance. 
Legislatures are free to ignore the meaning and relevance of tradition, judges are not. Therein lies the difference. 

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