The Twenty-Eighth Annual Kenneth J. Hodson Lecture: Judicial Decision Making

• Author: Susan J. Crawford
• Pages: 05

2000] TWENTY-EIGHTH KENNETH J. HODSON LECTURE 99

THE TWENTY-EIGHTH ANNUAL

KENNETH J. HODSON LECTURE:1

JUDICIAL DECISION MAKING

SUSAN J. CRAWFORD

CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES2

I would like to address the rather broad topic of judicial decision-making. More specifically, I will describe how I, as one individual appellate judge, approach deciding a legal issue that is before the Court of Appeals for the Armed Forces, and how that may help you as judges and counsel. Additionally, I will also make a few comments on United States

v. King3 and on the Fiftieth Anniversary celebration of the Uniform Code of Military Justice (UCMJ).

While I do not think that it would be appropriate for me to talk about the judicial philosophies of my colleagues, I do hope that I can lay out my own views in providing a conceptual approach to judicial decision-making. Judicial decision-making and opinion writing is in part a question of collegiality. Chief Justice Rehnquist has said that he enjoyed writing his book on impeachment because he did not have four other individuals telling him how to do it. That says a lot, because what we seek to do in writing opinions is gather a majority for the opinion.

The primary purpose of our decision-making is to interpret the law so that it is predictable to members of the bench and bar. A judge should not use the opportunity merely to pursue his or her own private aims or views. This requires an accurate appreciation of the requirements of the military community as well as the application of good common sense.

When you ascend to the bench, you are not required to discard the knowledge you have gained over the years. You may have been counsel for the defense or for the government, a trial judge, a staff judge advocate (SJA), or held other positions. Your experience is important. As Justice Holmes once declared, "The life of the law has not been logic: it has been experience."4

In the final analysis, our role is to enforce the Constitution, statutes, executive orders, service directives, and common law while ensuring truth-finding, as elusive as that goal may be. This means protecting the rights of defendants, protecting the rights of victims, and ensuring that our military can enforce our national interests throughout the world.

I believe that it is vital to our judicial decision-making for us to have a conceptual approach that provides us with a method of analyzing and deciding legal issues. We begin with the premise that the purpose of a criminal trial is truth-finding. That is, we seek to find the truth within a framework of certain rules. These include constitutional, manual, ethical, regulatory, and common law rules.

Sometimes it may appear that some of these rules, such as defense counsel's ethical obligation zealously to represent his client, may conflict with the goal of truth-finding. But, I submit to you that this ethical obligation is a part of our truth-finding quest in an adversarial criminal justice system. The same can be said for constitutional and Manual for Courts-Martial provisions that protect individual rights and limit law enforcement activities.

How and when to apply these rules are not only part of the life-blood of the military justice system, but also the lodestar for appellate issues. How trial and appellate courts decide these issues can have reverberations throughout the system. The hallmark of good judicial decisions then is consistency, rationality, and coherence.

These characteristics-consistency, rationality, and coherence-are of course important in order to insure stability and predictability for those with responsibilities in the military justice system. As an appellate judge, trial or defense counsel, or even a commander or his SJA, you know how important stability and predictability can be as you analyze the issues and strategies before you in a particular case.

I believe that we achieve stability and predictability if we have a conceptual foundation from which to make decisions. It is a starting point with a rather straightforward building block approach that has different levels.

There is an old saying that your starting point will, on many occasions, determine what road you will take and ultimately, your final destination. For me, the starting point for our conceptual foundation is what I have frequently referred to as the "hierarchy of sources of rights." That is, the sources of rights that service members enjoy.

I have emphasized the hierarchy in my opinions because of its importance throughout the judicial system, whether at a court-martial, the Supreme Court, or any other appellate court. At the top of the hierarchy is the United States Constitution, followed by federal statutes, including the Uniform Code of Military Justice. Next come executive orders, including the Military Rules of Evidence (MRE) and Rules for Courts-Martial (R.C.M.), followed by Department of Defense (DOD) and service directives, and, finally, common law, that is, case law.

Each source of a right falling below the Constitution must satisfy the higher source and remain consistent with that source. Note, however, that a lower source of rights-such as a service directive or a Manual provision-may grant greater rights than required by the Constitution or another higher source. If we apply the hierarchy, an objective, rational approach will resonate throughout the legal community and with the public. When our questions are not answered by looking at the hierarchy, then we will look at the values and interests meant to be protected by the Constitution, rules, and other sources of rights.

The hierarchy also highlights the type of government we have and shows trust, rather than distrust, in democracy and the separation of powers. The task of rule-making is left to Congress and of enforcement of those rules to the President. The role of the judiciary is to interpret those rules within certain formal and institutional norms. Justice Holmes once

said that the law is something more than some "transcendental body of law outside of any particular state."5 The law is a prediction of what trial judges and appellate judges will do in any given case.6

There are basic ingredients that a judge uses to ensure that what happens is predictive, be it the Bench Book, the Manual, the UCMJ, the Constitution, court decisions-or all of these tied together. In a sense all of you as judges seek to predict what will happen-both at the trial level as to the findings when you are not the fact-finder-and what will happen on appeal. The question is how do you increase your probabilities of being correct. Without the hierarchy, our decisions might be based upon intuition or individual moral values. Predictability and stability would be cast to the wind. This would amount to a distrust of democracy and ultimately lead to a distrust of what courts do.

I do not mean to imply that the law does not have morality attached to it. It does. But, generally, the decisions as to morals, values, and other factors are made in the first instance by Congress in the Legislative Branch and not by the courts. If the law depended upon individual moral values, it would be hard to justify and difficult to respect. Stated differently, to act solely on an individual sense of right or wrong is to confuse the bench and bar as we all struggle to interpret the law.

We build on the past. This is an endless process, one that hopefully will better society. But in so doing, we must drive in our own lane and be mindful of the separation of powers. A court can-of course-always try to articulate a rationale for over-stepping the separation of powers doctrine. But I believe the recent Clinton v. Goldsmith7 case teaches us that a court does so at its peril.

Courts should stick to the law and not make decisions based on politics or value choices. Neither should decisions be based upon personal views or preferences as to a particular case, set of facts, defendant, or other subjective criteria. Requiring courts to set forth sound reasons for their decisions acts as a control on the authority of courts and obedience to legal doctrine. This is vital to the functioning and constraining of the judiciary's exercise of power. It is law-and not personal politics or preferences-

that should control. Where there are gaps in the law, courts may suggest that Congress or the President change a particular rule to conform with what is considered to be a just result.

Let us examine the hierarchy of sources of rights more closely. In United States v. Guess,8 the court discussed the hierarchy as cited in previously decided United States v. Taylor9 and United States v. Lopez.10 Part of that discussion is as follows:

The military, like the Federal and state systems, has hierarchical sources of rights. These sources are the Constitution of the United States; Federal Statutes, including the Uniform Code of Military Justice; Executive Orders containing the Military Rules of Evidence; Department of Defense Directives; service directives; and Federal common law. Unlike the Federal Rules of Evidence, Section III of the Military Rules of Evidence "codifies" the constitutional rules. Normal...