First published January 27, 2004, in Res Gestae, a student-edited newspaper at the University of Michigan Law School.
At a recent lunchtime event on judicial nominations, a student prefaced his question by explaining that he was a member of the Federalist Society because he preferred judges "who interpret law rather than make law."
I don't know this student, so nothing here is intended personally. But I can't understand how someone can finish even a semester of law school and claim he can readily distinguish between "interpreting" the law (something, apparently, a card-carrying Federalist does) and "making" law (something activist liberal judges do).
Conservatives have gotten a lot of mileage with this idea. It appeals to non-lawyers who believe the proper role of judges is like turning a crank. You take the relevant inputs (facts, precedents, statutes, whatever), "apply" some law, and out pops objective, principled justice. A few more advances in Westlaw and we might not even need human judges.
Interestingly, when a controversial political or cultural issue is involved, the result this system is expected to produce almost always comports with the tastes, will, or prejudices of the majority.
But jurisprudence goes awry when "activist" judges sabotage the machinery by substituting their "arbitrary will" (President Bush's words in the State of Union) to achieve their own ideological ends. A sure sign this has happened is when the result supports the rights or aspirations of a political or cultural minority.
In short, many conservatives, full of phony populist indignation, tell a dishonest, oversimplified story to an ill-informed public. This provides cover for conservatives to appoint their own judges - many of whom are committed not to some tedious process of cranking the legal machinery, but rather to making law that reflects their policy preferences.
The mechanical conception of judges' work may be appropriate to trial courts, which are bound to apply law as they find it. Yet often what trial courts apply is common law - law that was made by other judges. The common law's enduring strength is its ability to evolve alongside human understanding and norms of behavior while gradually shedding outdated shibboleths.
Thus, one important role of appellate courts is to evaluate a law's rationality, workability, and constitutionality. This is not an inherently liberal or conservative enterprise.
Every student knows the law is full of open-ended questions. What did the legislature "intend?" Does text "bear the weight" of a given reading? Did the court below "abuse its discretion?" When is stare decisis inappropriate? What is "reasonable?" The idea that conservative judges aren't as capable or willing to manipulate these fudge factors as avidly and effectively as liberals sometimes do is the essential lie of the conservative legal movement.
Take one example: In the 1996 Hopwood case, the Fifth Circuit gave a major victory to conservative agitators and struck down affirmative action at the University of Texas, overthrowing longstanding legal, legislative, and social consensus. The arguments for doing so may or may not have been persuasive. But don't say this wasn't activism.
How about Justice Scalia's ongoing obsession with overturning the settled law of Roe v. Wade? Roe may well have been flawed as a matter of legal reasoning. But Scalia, a Federalist high priest whose "textualism" is often confused with judicial minimalism, has no interest in "interpreting" that decision. He wants to blow it up.
The Federalists can't have it both ways - grooving to every cranky Scalia eruption, yet publicly claiming to want more disinterested judicial drones, and all the while praying for the retirements of actual independent-minded moderates like O'Connor and Kennedy.
Recently the Massachusetts Supreme Judicial Court explained why denying the fundamental right of marriage to same-sex couples is unfair, no longer supported by persuasive reasoning, and a violation of the state's constitution. This obviously makes for major change in the law. Yet the court did not just issue an edict. Its opinion is there for all to read, and should stand or fall on its own accuracy, honesty, and rigor.
But I have yet to hear a conservative political or legal commentator engage the history, findings, or logic of the actual Massachusetts opinion. That isn't the stuff of sound bites. Conservatives seem content to let thugs like Bill O'Reilly - who simply smears any judge he disagrees with as an undemocratic radical - instruct the public on these matters. And so, many Americans confuse prejudice and sectarian dogma with legal reasoning.
The legal right needs to give up the conceit of its purity. Thoughtful conservatives and liberals have different visions of justice and social utility, and these visions will affect how they shape the law. We can only insist on judges whose work is clear, exacting, and intellectually honest - transparent to citizens, and persuasive to those who are trained to evaluate legal argument.
Meanwhile, law students should know better than to describe our vocation with slogans and simplifications.