Judicial Policymaking

• Author: Howard E. Dean
• Pages: 1460-1463

Page 1460

Judicial policymaking and related terms?JUDICIAL ACTIVISM, judicial creativity, and JUDICIAL LEGISLATION?emphasize that judges are not mere legal automatons who simply "discover" or "find" definite, preexisting principles and rules, as the declaratory or oracular conception of the judicial function insisted, but are often their makers. As Justice OLIVER WENDELL HOLMES remarked, they often exercise "the sovereign prerogative of choice," and they "can and do legislate." Indeed, that is why the Supreme Court has often been viewed as "a continuing constitutional convention."

Policymaking is deciding what is to be done by choosing among possible actions, methods, or principles for determining and guiding present and future actions or decisions. Courts, especially high appellate courts such as the SUPREME COURT, often make such choices, establishing new rules and principles, and thus are properly called policy-makers. That was emphasized by CHARLES EVANS HUGHES'S famous rhetorical exaggeration, "The Constitution is what the judges say it is," and by his remark that a federal statute finally means what the Court, as ultimate interpreter of congressional LEGISLATION, says it means.

Page 1461

The persistent "declaratory" conception of the judicial role, a view critics derided as MECHANICAL JURISPRUDENCE, and simplistic notions of the SEPARATION OF POWERS principle long obscured the reality of judicial policymaking. Today it is widely recognized that, as C. Herman Pritchett has explained, "judges are inevitably participants in the process of public policy formulation; that they do in fact "make law'; that in making law they are necessarily guided in part by their personal conceptions of justice and public policy; that written law requires interpretation which involves the making of choices; that the rule of STARE DECISIS is vulnerable because precedents are typically available to support both sides in a controversy."

As a system of social control, law must function largely through general propositions rather than through specific directives to particular persons. And that is especially true of the Constitution. The Framers did not minutely specify the national government's powers or the means for executing them: as Chief Justice JOHN MARSHALL said, the Constitution "is one of enumeration, rather than of definition." Many of its most important provisions are indeterminate and open-textured. They are not self-interpreting, and thus judges must read specific meanings into them and determine their applicability to particular situations, many of which their authors could not have anticipated.

Among the Constitution's many ambiguous, undefined, pregnant provisions are those concerning CRUEL AND UNUSUAL PUNISHMENT; DOUBLE JEOPARDY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS; ESTABLISHMENT OF RELIGION; excessive BAIL and fines; EX POST FACTO LAWS; FREEDOM OF SPEECH, press, assembly, and religion; life, liberty, and property; the power to regulate commerce among the several states; and unreasonable SEARCHES AND SEIZURES. Also undefined by the Constitution are such fundamental conceptions as JUDICIAL REVIEW, the RULE OF LAW, and the separation of powers. Small wonder, then, that Justice ROBERT H. JACKSON plaintively remarked that the Court must deal with materials nearly as enigmatic as the dreams of Pharaoh which Joseph had to interpret; or that Chief Justice EARL WARREN emphasized that the Constitution's words often have "an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government."

Because the Constitution embodies in its ambiguous provisions both common and conflicting community...