Activist or automaton: the institutional need to reach a middle ground in American jurisprudence.

• Author: Lavoie, Richard
• Position: Issues Facing the Judiciary

1. INTRODUCTION

   The recent political season saw the idea of judicial activism regularly trotted out as an electioneering boogeyman at all levels of government--from local judicial races to the Presidency of the United States. (1) A common theme is that activist judges regularly overturn the will of the people by "legislating from the bench." Such rogue jurists twist the law in a manner that usurps the role of the legislature and thwarts the popular will in favor of the judges' personal views. On the other side, one sometimes hears equally strident claims that limiting the judiciary to literalist modes of statutory interpretation transforms judges into mere automatons, unwilling or unable to safeguard individual rights or apply the law in a reasonable manner to difficult factual situations. (2)

   The purpose of this essay is to make a plea that we lay aside such strident rhetoric and approach the issue of the appropriate degree of judicial discretion from an institutional perspective. This essay suggests that neither extreme is a viable jurisprudential model from an institutional standpoint. Instead, the relative strengths and weaknesses of both our legislative and judicial institutions must be taken into account to find a middle ground with regard to judicial activism. Inherent in the idea of a middle ground is the need to accept that some degree of judicial activism is appropriate and necessary. The key difficulty, once this is agreed upon, is determining how to regulate judicial behavior to limit exercises of judicial activism to situations where it is institutionally beneficial. This essay maintains that internal constraints on judicial behavior can be used to effectively regulate judicial activism, but that this is only possible if steps can be taken to prevent politicizing the judiciary and to increase cohesion and consensus within the ranks of the judiciary itself. The theme for this symposium is issues facing the judiciary. This essay respectfully suggests that finding ways to foster judicial cohesion and consensus is one of the most important, and difficult, issues facing the judiciary today.

2. THE FUNCTION OF LAW AND THE LEGAL SYSTEM

   Before discussing the proper role for judicial activism, it is first necessary to examine the function of the legal system and law itself. The law gives us order and rules by which we regulate the actions of individuals and channel activity to promote societal goals. To achieve these ends, the law must be both respected and obeyed. That is, the "Rule of Law" must obtain. This concept dates back to Aristotle, who said that the law strives to be "reason unaffected by desire." (3) While the Rule of Law is the centerpiece of a democratic society, there is surprisingly little agreement about its exact nature or how to achieve it. (4) The Rule of Law, in theory, can merely refer to a system where legal rules are uniformly adhered to and equally applied to all citizens. (5) But in a democratic society, individual obedience to the law requires more than mere fear of punishment for violations. For the law to serve as an effective constraint on behavior, members of a society must respect the substance of the laws and the process by which they are created and enforced. (6) This condition of respect for, and obedience to, the law will be referred to as the existence of the Rule of Law in a society. (7)

   1. Establishing the Rule of Law--Promoting the Goals of Equality, Uniformity and Predictability

      In a common formulation, the Rule of Law is characterized by laws that are equally, uniformly and predictably applied. For purposes of this essay, it will be assumed that these goals are necessary, but not sufficient, elements of the Rule of Law. (8) These characteristics and their relevance to this discussion are briefly outlined in the remainder of this section.

      The first requirement of the Rule of Law is equal treatment. Applying the law equally to all citizens demonstrates the fairness and impartiality of the legal system. Since the system is not subject to manipulation by the rich and powerful, average citizens are more inclined to respect and obey the law themselves.

      The second component of the Rule of Law is uniformity. Agreement among different judges regarding the meaning of a particular law promotes the public's belief in the law's rationality and encourages public reliance on the fixed meaning. Conversely, judicial disagreement regarding a statute's meaning instantly generates unequal treatment between similarly situated persons and delays arriving at a settled interpretation of the law.

      The third characteristic of the Rule of Law is predictability. Predictability encourages citizens to plan their affairs in conformity with the law to society's benefit. If citizen reliance on the law is frustrated by unanticipated judicial interpretations, then faith in, and respect for, the law is diminished. The use of strict statutory construction arguably creates an environment in which both the judiciary and the public can more quickly understand the import of statutory language.

   2. Facilitating Democracy--Ensuring the Law Reflects Its Society

      Under the above approach to the Rule of Law, individuals can be protected from the arbitrary application of the law, while at the same time suffering from the creation of unjust laws. Thus, a dictatorship could exemplify the Rule of Law as long as the dictator's whims are clearly stated and enforced without regard to the violator's social or political status. Typically, however--and as used in this essay--the Rule of Law is thought to include safeguarding individual liberties from the arbitrary use of government power. The laws themselves must be just. The Rule of Law therefore requires the populace to freely accept the law, in addition to requiring that the law be fairly and impartially applied. In its most basic formulation, the Rule of Law represents a state where the law fairly communicates the will of society and society's members respect the law's expression of that will. Phrased so generally, the concept is not only uncontroversial, but is central to the existence of a democracy.

      An important corollary to the requirement that the Rule of Law only exists when citizens believe that the law appropriately reflects societal values is that the law really only has meaning in its particular societal context. (9) Further, since society is constantly evolving, it is imperative that the institutions of government work to facilitate the law's adaptation to its ever-changing societal context. (10) With this understanding of the operation of the Rule of Law, and the goal of the legal institutions of government in fostering it, this essay can fruitfully turn to an examination of the appropriateness of judicial activism.

3. THE JUDICIAL ACTIVISM CONTROVERSY

   1. Constraining Judges from "Making" Law--The Case for Strict Statutory Construction

      While the case against judicial activism takes many forms, for purposes of illustration, the "New Textualism" (11) of Justice Scalia represents a well-articulated attack and means of addressing the perceived concern. The New Textualism is premised on the belief that strict statutory construction is required to promote the Rule of Law. (12)

      In particular, as discussed above, a legal system is said to exemplify the Rule of Law if it promotes the goals of equality, uniformity and predictability. (13) The linchpin to Justice Scalia's approach to the Rule of Law is that judges must, in fact, be able to find only a single interpretation of the law and enunciate it in a clear and defensible fashion for these three characteristics to exist. (14) Uniformity among judges requires that they discern the same meaning for the same law, divorced from the facts of the particular case in point. To ensure equal treatment, the judge must be able to state clearly for the public the rule being applied. Predictability requires that not only judges, but also the public itself, be able to discern and anticipate the uniform meaning that ultimately will be given to a particular statute. Therefore, to make this interpretation of the Rule of Law possible, Justice Scalia limits judicial discretion to a highly constrained mode of statutory interpretation--New Textualism. This theory emphasizes adhering literally to the plain meaning of the statutory language and rejects undertaking any analysis of other sources of interpretive authority that otherwise might lead reasonable minds to differ regarding meaning. (15)

      Unfortunately, as a result, New Textualism severely limits the discretion of judges to interpret the law consonantly with the views of society. (16) The literal text of the statute is thought to have a fixed meaning from which judges are not free to stray. In this view, judges should essentially be faithful agents, implementing the decisions that the legislature has arrived at as properly reflecting societal values. Thus, New Textualism advocates strict statutory interpretation as a means of reducing judicial activism--thereby realizing the Rule of Law--but does so at the expense of allowing the judiciary any role in molding the law to fit difficult or unanticipated situations. This approach places the entire burden of adapting the law to society's values upon the legislature. As discussed below, while this is the primary institutional role of the legislature, and the judiciary is generally not well-placed to make broad policy-oriented decisions for society, as an institutional matter, the legislature is ill-suited to carry this entire burden alone. (17)

   2. Encouraging Judges to "Adapt" Law--The Case for Open-Ended Statutory Construction

      The historic strength of the American judiciary has been the creation of common law through incremental case-by-case adjudication. While Justice Scalia maintains that this common law tradition is of little relevance given the overwhelmingly statutory and regulatory nature of our modern-day legal system...