Judging the Judges: a Case Study in Judicial Responsibility

• Publication year: 1981
• Citation: Vol. 5 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 5, No.1FALL 1981

JUDGING THE JUDGES: A CASE STUDY IN JUDICIAL RESPONSIBILITY

Maximilian J. B. Welker, Jr.(fn*)

I. Introduction

Scholarly and professional perceptions of the role of the judiciary, and hence of the responsibility of judges, have undergone radical change since the early 1900's, and judicial opinions have both reflected and been influenced by those perceptions. At the turn of the century, conceptual abstraction and logical consistency held sway.(fn1) Formalism, however, gave way to Legal Realism in the 1920's and 30's. Of the many important contributions that Realism made to the way we think about law, the most fundamental was its recognition that formal rules do not mechanically govern the resolution of legal disputes. This insight, however, led some theorists to the conclusion that the role of legal standards is peripheral at best.(fn2) Under this conception, the dominant factor influencing the outcome of litigation is the personality and psychology of the individual judge. To the practicing attorney, this meant that the key to success in litigation lay in "psyching out" the judge and designing trial tactics to elicit the desired psychological response from the bench. From the point of view of the judge, however, skepticism about the relevance of legal standards was not much help. The judge who faced a difficult choice in a close case could only conclude that his or her personal conception of the underlying values must be the guide.

This view was tempered in the postwar era by the concept of "reasoned elaboration."(fn3) This concept presumably placed a limit on judicial freedom by requiring that opinions not simply give reasons supporting the outcome, but that they rely upon those reasons in justifying the outcome through rational evaluation of legitimate legal standards. Contemporary jurisprudence continues to wrestle with the problem of identifying criteria for ascertaining judicial legitimacy in individual cases.(fn4) Clearly, giving deference to legislative policy choice is legitimate, while acting on the basis of personal prejudice is not, yet there is a wide gap between these extremes.

In working toward an articulation of criteria for judging the legitimacy of legal reasoning, we should be able to find guidance in the primary data: judicial opinions. As Herbert Wechsler pointed out over 20 years ago, "the question [of identifying judgmental criteria is] the same one for the Court and for its critics."(fn5) "Good" opinions, of course, reflect legitimate use of legal argument; however, poor opinions can be instructive as well. By specifying why a given justification is inadequate or identifying those concerns which were improperly taken into account as well as those that should have been taken into account, we can begin to generate objective criteria for judging the judges. A recent decision of the Washington State Supreme Court provides fertile ground for this approach.

II. Wyman v. Wallace-Summary of Opinions

Plaintiff brought an action for alienation of his wife's affections and obtained a judgment against the defendant in 1974.(fn6)Two years later, the court of appeals per curiam held that the action for alienation of affection of a spouse was abolished.(fn7) In 1979, the supreme court reversed the court of appeals in a five to four decision, but granted reconsideration.(fn8) Upon reconsideration in 1980, the court vacated its prior decision and affirmed the court of appeals' abolition of interspousal "rights" to "affection."(fn9)

The court of appeals based the abolition of the cause of action on several policy grounds which were summarized by the majority opinion in Wyman II as follows:

The Court of Appeals explained that the action should be eliminated for the following reasons: (1) The underlying assumption of preserving marital harmony is erroneous; (2) The judicial process is not sufficiently capable of policing the often vicious out of court settlements; (3) The opportunity for blackmail is great since the mere bringing of an action could ruin a defendant's reputation; (4) There are no helpful standards for assessing damages; and (5) The successful plaintiff succeeds in compelling what appears to be a forced sale of the spouse's affections.(fn10)

The majority in Wyman I was not persuaded by the lower court's reliance on these factors because in its view they lacked evidentiary support: "Judicial abolition of a long-standing cause of action, however, should be supported by clear reasons and an evident factual basis."(fn11) In the absence thereof, "any determination to abolish the action for alienation of a spouse's affections as an anachronism incompatible with contemporary mores or opinion, should be made by the legislature."(fn12)

The majority opinion in Wyman I also responded to Wyman's reliance on two recent Washington statutes: The Dissolutions of Marriage Act(fn13) and the Equal Rights Act.(fn14) With regard to the Dissolution Act, the court stated that while it "made sweeping changes in the law regarding the relationship between spouses . . . it did not purport to modify the rights of a spouse against a third party."(fn15) Similarly, the Equal Rights Act was not relevant since the cause of action for alienation of affections was available to both men and women.

Subsequently, the Wyman II court identified its inherent power to modify or abolish a common law rule in light of changed circumstances as a justification for abrogating the cause of action. In response to Wyman I's concern about the lack of evidence regarding the asserted policy considerations, the court relied on its ability to ''take notice of 'legislative facts'-social, economic, and scientific facts that 'simply supply premises in the process of legal reasoning' . . . . Under this doctrine a court can take notice of scholarly works, scientific studies and social facts."(fn16) Asserting the appropriateness of relying upon such "legislative facts" when rendering a policy grounded decision, the opinion stated that the court of appeals "based its decision on judicial notice of the realities of a marital relationship." Further quoting from the court of appeals' decision, the supreme court affirmed that " 'a viable marriage is not one where the "mental attitude" of one spouse towards the other is susceptible to interference by an outsider.' (fn17) After citing a United States Supreme Court decision(fn18) and a Washington Supreme Court decision(fn19) as authority for taking judicial notice of such social facts, the opinion ended with the above quoted listing of policy reasons relied upon by the court of appeals.

III. Wyman v. Wallace-Evaluation

Both the substantive issue and the case's procedural posture raise questions relating to the legitimate modes of substantive justification for court decisions and to the appropriate role of the judiciary in our system of government. The determinative nature of social policy issues in a decision to abolish the common law action for alienation of affections highlights the borderline between appropriate judicial resolution of individual controversies and inappropriate judicial legislation on broad social policy issues. The confusing procedural history of the Wyman case represents a failure of substantive consistency in judicial decisions. Initially, these two...