Judicial Philosophy

There is an often-told story of two legendary American jurists, Oliver Wendell Holmes and Learned Hand, who had lunch together, and as Holmes was leaving, Hand cried out, "Do justice, sir, do justice." Holmes stopped his carriage and replied, "That is not my job. It is my job to apply the law." This simple story captures a profound and spirited debate about the role of the courts in our system of government.

I am a judicial conservative — through and through — and believe that a judge's supreme duty is to interpret and apply law, not create it from the bench. I have a resolute commitment to judicial restraint and believe that judicial excellence requires judicial deference to the policymaking branches. *

THE ROLE OF THE JUDICIARY

interpreting the law, not creating it

• The judiciary's role in our system of government is vital, but it is also confined.
• The Founders were confident the judiciary would be the "least dangerous branch." Unfortunately, that assurance has proven to be too optimistic. We live in an increasingly legalized culture, and today's judiciary wields vast power over citizens' everyday lives.
• Our government, however, is founded on "We the People," not "We the Judges" — we are a nation of laws, not of men — and the judiciary must adhere unshakably to the rule of law, not the rule of nine politician-lawyers in robes.
• The judiciary is emphatically a legal institution, not a political one or a cultural one.
• Judicial activism has many variations, as countless scholars have identified, and they all have this in common: they denigrate representative democracy and exalt the court's role.

THE DUTY OF A JUDGE

acting judicially by adjudicating, not politically by legislating

• Judges must resist the temptation to legislate from the bench. Judicial review does not give judges carte blanche to impose their own political or policy whims.
• Modesty is a cardinal virtue required of each of us, but especially of judges. I believe that principled judging, "rests on a great renunciation," to use George Will's phrase, "a refusal to infuse the law with any content other than that of the framers of the Constitution or legislators."
• A judge must be an impartial umpire, calling legal balls and strikes. Judging must never devolve into backwards, result-led decisionmaking where the desired outcome trumps impartial analysis. I agree with Judge Bork's description: "This results-first, premises-to-follow form of legal 'reasoning' is to law what Robert Frost called free verse, 'tennis with the net down.'"
• Moreover, a judge must write clearly and provide bright-line guidance. A judge "must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result," advises Judge Bork.
• The judiciary should occupy a modest role and never be "the primary engine of government-driven social change," as one commentator puts it, a supreme legislature of last resort imposing what the people through its elected representatives have refused to impose, even if the judge thinks that the legislature's inaction is rooted in unenlightenment, "obtuseness or cowardice."

STATUTORY CONSTRUCTION

reading text as it is, not as a judge wishes it to be

• Appellate judges today spend most of their time interpreting language — the language of a regulation, or a statute, or a constitutional provision.
• As a result, how a judge construes language is critically important.
• I am what lawyers call a "textualist" (what others call a "strict constructionist") and believe that the law — the enacted text itself — means what it fairly means, not what a judge believes it should mean.
• When interpreting a statute, a judge generally aims to discover "legislative intent" — that is, what lawmakers understood and meant when they passed the language they did.
• I believe that the clearest indication of what lawmakers intended is what lawmakers enacted.
• If a statute's literal text is plain and unequivocal, case closed. The judge's duty is simple: enforce the unambiguous language.
• Judges should beware when looking outside a statute's literal language and mining so-called "legislative history" — external materials that make up the minutiae of the legislative process (committee reports, bill analyses, witness testimony, legislative debates, etc.).
• When a text is ambiguous, these outside materials can occasionally provide a judge with useful insight, but often such aids are less than authoritative and can hoodwink judges with contrived guidance.
• Also, it enables judicial activists to look selectively for only those snippets of legislative history that reinforce their policy views; any snippets that suggest a contrary result are conveniently disregarded.
• Judge Patricia Wald delights in telling the classic quip of a former colleague who remarked that using legislative history is like going to a crowded cocktail party where you scan the crowd and try to spot your friends.
• The mis-use of legislative history has reached a point where, as Justice Scalia remarks, "Reality has overtaken parody." He often describes a brief written to his court several years ago that opened with a discussion of legislative history and then continued, "Unfortunately, the legislative debates are not helpful. Thus, we turn to the other guidepost in this difficult area, statutory language."
• I agree with Justice Scalia, the nation's foremost judicial proponent of textualism, who highlights the obvious irony: that legislative history actually becomes less authoritative the more courts look to it. Much legislative history exists precisely because clever people know that judges often over-rely on it. As leading textualists like Judge Frank Easterbrook and Justice Scalia point out, legislative history has become less of a device to enlighten legislators (those debating and enacting the law) than to sway judges (those interpreting and applying the law).

CONSTITUTIONAL INTERPRETATION

deferring to democratic choices of the lawmaking branches

• Constitutional interpretation sparks enormous acrimony, but everyone from liberal U.S. Senator Dianne Feinstein to conservative Judge Bork, acknowledge this undeniable truth: the Constitution is the "trump card" in our political system, and courts decide what it means.
• The judiciary should not be, as Justice Black famously warned, a day-in, day-out constitutional convention that usurps power from the people and the people's elected representatives.
• As countless conservative scholars including Judge Bork have noted, either the Constitution and statutes are in fact law and therefore controlling or they are pliable words that a willful judge can freely amend to ensure a desired political or cultural outcome.
• Judicial activism is particularly dangerous when judges are construing a constitutional provision. If a court missteps when interpreting a statute, the legislative body can simply pass a new statute. But if a willful court rules that something is constitutionally enshrined, only a later court decision (or a constitutional amendment adopted by the people) can overrule it. This is why conservatives like Justice Scalia bemoan such activist constitutional decisions as "virtually irreparable."
• This much is true, as Professor Lino Graglia and others have noted: if courts exercised judicial restraint and struck down as unconstitutional only those laws that obviously clash with the Constitution's text, judicial confirmation wars on the federal level would be much tamer.