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gradually shedding outdated shibboleths.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.