A theme central to law school is the evaluation of court judgments. Teaching students the difference between broad and narrow case readings sets life-long templates for professional judgment.
What is the legal interpretation? What is judicial activism or restraint? Judges adjudicate and onlookers comment on the activism or lack thereof. Terms such as activism and restraint not only signal agreement or disagreement with a decision; they are politically charged code words indicating entire philosophies of law.
Regarding judicial activists and strict constructionists, Karl Lewellyn stated:
There is the man who loves creativeness, who can without loss of sheep combine risk-taking with responsibility, who sees and feels institutions as things built and to be built to serve functions, and who sees the functions as vital and law as a tool to be continually reoriented to justice and to the general welfare.
There is the other man who loves order, who finds risk uncomfortable and has been so much irresponsible and unwise innovation that responsibility to him means caution, who sees and feels institutions as the tested, slow-built ways which for all their faults are man’s sole safeguard against relapse into barbarism, and who regards reorientation of the law in our polity as essentially committed to the legislature.
Whether you believe that human nature and institution are dynamic, static, or both, the law goes through cycles of history, Lewellyn assigned the years 1820 through 1850 as the time when “precedent guided but principle controlled.” From 1880 until 1910, “precedent was to control… the principle was to… [make] order in the law ….” From 1920 to 1947, Lewellyn said judges basically mirrored the 1820 to 1850 period but wrote in the style of the formalistic 1880 to 1910 period. After that, some onlookers said the Warren Court’s interpretations were driven by activism. Swinging the pendulum once more, the Burger and Rehnquist Courts are primarily seen as strict constructionists.
When Interpreting laws, judicial activists look deeper and further than advocates of judicial restraint. Today, these judicial activists look hard to sift laws through a fine sieve, applying a thesaurus to every word in every variation, reading every statute, record, hearing transcript, ledger, and speech of the legislature looking for reasons why the law reads so.
An activist’s core argument is that actions of the legislature are the foundation of the law, not the end of the law. The Court is to build on those foundations so the enhanced power of the state brings greater welfare and safety to the populace. Therefore, morally, the Court should make laws, as well as apply them.
Justice Ginsburg is perceived as a judicial activist, following the path of Justices Cardozo and Brennan. In their view, the job of the Court is to interpret the law to remedy societal inequities through an expansive reading of the law. Justice Cardozo said, “the final cause of the law is the welfare of society ….”
Brennan applied this sociological method to the interpretation of Title VII of the Civil Rights Act of 1964 in United Steelworkers of America v. Weber, 443 U.S. 193 (1979). Brennan recognized that a plain reading of the statue would not support affirmative action. Thus, he reasoned that “examination of those [legislative] sources makes clear that an interpretation of the sections that forbade all race-conscious affirmative action would [bring about an undesirable end] and must be rejected.”
Conversely, restrained interpretation adheres to the plain language of the law, reads the law on its face, does not ascribe hidden meaning, strictly construes meaning using standard definitions of words, and clings to long traditions through the mechanism of precedent. The moral sense of strict constitutions is that democracy requires citizen involvement through the legislature to make changes to the law, allowing the entire population input into the governing process.
Supreme Court of Justices Scalia and Thomas claim to hew to this type of judicial reasoning. In their writings, it is clear that they would like the legislature to make the law for the Court to apply, for they see the Court’s job as accomplishing the latter and not the former. Strict constructionists, such as Scalia and Thomas, claim to read the U.S. Constitution as it is written, using their understanding of the founders’ purposes to interpret the law(s) at issue. Even if the legislature does not construct the law well, strict constructionists will read it exactly as it says, interpreting it in a way that the state is harnessed tighter by the law.
Some claim the philosophy of Brennan’s lawmaking decisions and legal interpretation bring America close to tyranny, a rule of men, and farther from a stable republic under a firm rule of law. Did the Rehnquist Court accomplish that same deed in deciding the last Presidential election? Certainly, if the philosophy of Brennan can advocate the activist genie out of the bottle, any Court, including Rehnquist’s, could construe the law to their liking with no check on that power. How did this come to be? Is there a danger in politicizing the Court and undermining the stability of American society? If precedent and strict constructionism are now optional, as opposed to the traditional mandate, where did judges stop requiring such? One influential jurist may provide a clue.
In the late nineteenth century, Oliver Wendell Holmes realized that “in theory, any document purporting … to have some legal effect has one meaning and no other.” This could be said of both statues and common law. But, this ideal is never reachable. Searching for a solution, Holmes asked, “How is [the statue or document interpreted] when you admit evidence of circumstances and read [it] in light of them?” Further, Holmes discussed a document as having a natural “play in the joints” due to the various possible meanings. Thus, he argues that should interpret it based on “what those words would mean in the mouth of a normal speaker of English[,] . . . our old friend the prudent man.” If the Court does both, is precedent undermined? Does it lose its value? Is there a slippery slope?
As if supporting this possibility, our prudent man has now broken down into several factions (using Madison’s appropriate term) and now, in arguing about female plaintiffs, Rebecca Henry states, “if a [male] judge cannot imagine what women suffer from being harassed on the job, he loses access to a vivid sense of the injustice of the act . . . .” How can “[he] fairly decide whether the law offers any remedy for the felt injustice [?]” If a male judge cannot empathize with a female plaintiff, must we match the type of judge – and their lawyers too – with the type of plaintiff? In addition, perhaps different laws should apply for African Americans or A.A.R.P. members or gays or white supremacists – perhaps not. But, is this not necessarily the end result when the precedent is minimized, restraint is abandoned, and social engineering becomes the order of the Court?
In another example, should courts in product liability suits extend or abolish statutes of limitation “in order to permit the state of the art or technology of science to catch up with a plaintiff’s need to meet his or her burden of proof” in court? Blurring law creation and law application appear to proceed apace. Where is the legislature in this model? Is the Court’s activism a product of political gridlock in our legislature? Perhaps, like the three interlocking rings of Budweiser advertising fame, a little overlap and dilution of the strict separation of powers are good – perhaps not.
Justice Scalia will have none of this. In Morrison, a case authorizing a prosecutorial independent counsel, Scalia filed a lone dissent, stating, “it is not for [theCourt] to determine . . . how much of the purely executive powers of government must be within the full control of the President? The Constitution prescribes that they all are.” Therefore, Scalia views judicial restraint as critical to the maintenance of a strict separation of powers, with each governmental branch minding their own duties. Further, Scalia views the activist approach to legal interpretation as a threat to the stability of society through the breakdown of that separation of powers. If this is not the case, it is fair to ask for an outline of the alternate proposed model, to see if we are willing to risk America and our Federalist republic on its test.
As the debate continues to evolve, if “law is more than the will of the sovereign . . . it still must be rooted in human experience, in morality, and must always strive for justice.” However justice may be defined, civility requires empathy and compassion during discussions, with the understanding that this tension will continue as part of the design of our republic.
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