The role of the federal judge under the constitution: some perspectives from the Ninth Circuit.

AuthorO'Scannlain, Diarmuid F.

When considering the role of the federal judge under the Constitution, we should begin with the text of the Constitution itself.

  1. THE NATURE OF THE JUDICIAL POWER

    Article III, Section I provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (1) The text of the Constitution contains few other references to the "judicial Power." The term appears again in Article III, Section 2, which provides that "[t]he judicial Power shall extend to" particular "Cases" and "Controversies," (2) and in the Eleventh Amendment, which recognizes certain limits on the "judicial Power" because of sovereign immunity. (3) But that is all. The Constitution nowhere says what the "judicial Power" entails, or explains how it should be exercised.

    Given the Constitution's brief treatment of the subject, one might infer that the Framers meant to leave the nature of the "judicial Power" "relatively open-ended." (4) Such an inference would be wrong. The "judicial Power" was not a term coined by the new Constitution, but rather one quite familiar to the founding generation. As Philip Hamburger explains in his recent book, Law and Judicial Duty, the "judicial Power" was originally understood to mean essentially what it had meant in England: the power of courts to decide cases "in accord with the law of the land." (5) That the "judicial Power" was left largely undefined in the new Constitution merely reflected that its meaning was already widely accepted and understood. (6)

    The traditional conception of the "judicial Power" embodied important ideals. Because judges were to decide cases according to the law, they were not free to decide cases according to their personal values or individual notions of justice. The law alone was to supply the basis for decision, and it was the duty of judges to discover the preexisting rules contained therein. In Federalist No. 78, Alexander Hamilton defended the proposed Constitution on this very ground--that an independent judiciary would help ensure that "'nothing would be consulted [in the courts] but the constitution and the laws." (7) Of course, because judges would be applying the law, they would not be making it; the Framers wisely placed the power to make the laws in the political branches, which, unlike the judiciary, are directly accountable to the people.

    The Framers thus envisioned that the "judicial Power" would be exercised in a neutral fashion. Precisely because judges would be, in the words of Hamilton, "bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them," there would be no "arbitrary discretion in the courts." (8) Ideally, whether a party prevailed would depend not on the whims of any particular judge, but on the content of the applicable law. In that sense, as Hamilton famously put it, the judiciary was to exercise "neither Force nor Will, but merely judgment." (9)

    Chief Justice Roberts recently sought to capture the Framers' ideal of judging at his confirmation hearing by comparing judges to baseball umpires. He said that "[u]mpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role." (10) Chief Justice Roberts also said that, if confirmed, he would "remember that it's [his] job to call balls and strikes, and not to pitch or bat." (11)

    Although the baseball analogy is a good one, there might be a better sports model for the Framers' ideal. A judge may be even more like a football referee than a baseball umpire. (12) The baseball analogy may imply too much rulemaking discretion on the part of the judge. It is largely accepted that baseball umpires may define their own strike zones. (13) One umpire might have a strike zone higher or lower than that of another, forcing pitchers and batters to adjust accordingly. Judges do not enjoy a similar power to remake the rules; judges must take the rules as given, however they are expressed in the law. In this respect, judges are more like football referees, who lack discretion, for example, to alter the length of the end zone.

    Judges are more like football referees in another respect. In baseball, a pitch either passes through the strike zone or does not, a runner either avoids a tag or does not, and a ball either lands in foul territory or does not. Football, by contrast, is more often a matter of degree. There might be some contact between the cornerback and the wide receiver, but not enough to constitute pass interference. Or there might be some tugging and grabbing between an offensive lineman and his defensive counterpart, but not enough to qualify as holding. Similarly, in the law, there might be some indicia of government coercion, but not enough to render a confession involuntary. (14) There might be some evidence that an employer fired an employee for a discriminatory reason, but not enough to survive a motion for summary judgment. (15) The calls that a football referee must make more closely mirror the judgments that a judge must render.

    Putting all sports analogies aside, however, I am in full agreement with the Chief Justice's views on judging. It appears we both embrace the traditional ideal of the "judicial Power"--that of judges deciding cases in accord with the law. For much of our nation's history, that traditional ideal remained the dominant conception of judging. But in the 1920s and 1930s, scholars began questioning whether achieving the ideal was possible, let alone desirable. (16) Legal realists, as they came to be known, purported to "look[] beyond ideals and appearances for what [was] 'really going on.'" (17) They argued that judges do not in fact decide cases in accord with the law--not because judges are wilful or incompetent, but because the law itself is radically indeterminate. (18) According to the realists, conventional legal materials--such as text, history, and precedent--are too ambiguous or conflicting to yield a single right answer in a given case. Thus, the realists argued, judges cannot be trusted when they say the law dictates a particular result: Whether judges realize it or not, their decisions rest on considerations outside the law--be it their own values, their own biases, or their own views of justice. (19) Because resort to such extralegal considerations is unavoidable, the realists concluded, it is impossible for judicial decision making to be either neutral or objective. (20)

    Having supposedly debunked the traditional ideal of judging, the realists opened the door for new theories of adjudication to take its place The 1940s and 1950s witnessed the rise of the legal process school. (21) Like the realists, legal process theorists had lost faith in the determinacy of the law. (22) But they went beyond the realists by developing a new approach to deciding cases in the face of legal indeterminacy. Particularly influential in this respect were the teachings of Professors Henry Hart and Albert Sacks at the Harvard Law School when I was a student there during the 1960s. (23) Hart and Sacks built their theory on the premise that every law has a purpose--a purpose, that is, to address some societal need. (24) It is the task of the judge, Hart and Sacks argued, to ensure that those purposes are carried out. (25) Hart and Sacks urged judges to think of themselves as the legislature's partners in lawmaking, continuing the process of the law's "reasoned elaboration." (26) Hart and Sacks even recommended that judges keep a proper mindset by imagining themselves "in the position of the legislature ... pursuing reasonable purposes reasonably." (27) In short, Hart and Sacks remade the conception of the judicial role: Whereas before, the judge was expected to exercise neither force nor will, now he was encouraged to exercise will in pursuit of reasonable purposes. (28)

    Since the mid-twentieth century, the Hart and Sacks approach has evolved into an even more freewheeling theory of judging. Hart and Sacks at least acknowledged that the legislature had a primary role in lawmaking. (29) Some of my colleagues on the federal bench today may not acknowledge even that proposition. One of my fellow judges was once told, "[Y]ou're not a judge. You're a social worker." (30) Rather than deny the label, my colleague embraced it. "I guess I believe that all judges should be social workers," he said. (31) The same judge stated at his confirmation hearing that if he found that the law offended his conscience as a judge, he would "try and find a way to follow [his] conscience and do what [he] perceived to be right and just." (32) Another colleague of mine has expressed similar views on the judicial role, saying that the "guiding principle of the judicial branch" should be "concern for social justice and individual rights." (33) He has also advocated what he calls "a particular philosophy of law ... infused by concepts like 'rights' and 'social justice.'" (34)

    Such views misconceive the "judicial Power" and the proper role of the judge. If the law protects certain rights, then of course judges have a duty to uphold those rights. And if the law embraces a particular vision of social justice, then of course judges must uphold that vision--but as embodied in the law. Yet what some legal theorists seem to be suggesting is that unelected judges should enforce a particular conception of individual rights and social justice regardless of whether that conception finds expression in the law. Rather than have judges decide cases according to rules and concepts within the law, they would have judges decide cases according to norms and values outside it. And rather than have judges act as neutral umpires or referees, they would have judges behave as ideological partisans on behalf of the causes they deem right and just. A...

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