Thursday, November 03, 2005


Judges Make Law - Get Over It

What's so bad about judicial legislation?

The term "judicial activism," used to portray something radical, high-handed and anti-democratic, stands five thousand years of tradition on its head.

Judges made law in Biblical times, and a written account of their activity is preserved in the Bible as the "Book of Judges."

In the United States, law derives from three sources: the common law, the legislature, and the decisions of judges. The latter we call "judicial precedent" or "stare decisis." Precedent is often subsumed under the common law, but I would argue it deserves its own category. I would also add a fourth category, which law professors would not, and that is regulation created by the executive branch. In everyday life, regulation functions as if it were law; and judges, while not bound by regulation, must take judicial note of it when crafting decisions.

Law created by the legislature, or "statutory" law, sometimes reflects the inability of the law making body to reach a final decision. The political process, reflecting as it does the contradictions in our society, can result in a compromise that contains internal inconsistencies. Or, the legislature may not wish to take responsibility for the details of a program. The statute then, less than perfect, tells the executive what to do - or perhaps not. It may provide for the creation of regulations to carry out the program or mission envisioned by the legislature.

For example, the Congress passed a statute with the goal of protecting the environment and our natural resources. The law provided for the creation of an agency, the EPA, with the power to write and enforce regulations. It happens fairly often that the regulations conflict with some statute or other or the application of the law is unclear. Conflicts arise, and the mess gets dumped on the judge. In sorting it out, the judge looks to see what other judges have decided in similar cases. In the decision, the judge will refer to similar cases and detail any differences which flow from the particulars of the case before him.

The judge may not find cases sufficiently similar to permit a clear, short decision. In such a case, the judge will write a much longer judgment, giving a precise account of the reasoning that led to the decision made. This reasoning then, becomes a precedent. It allows the consistent application of a rule and upholds stability and order. It also insulates the law from change simply because of the changing identities of judges.

It saddens me to see people working themselves and others into a frenzy over "judicial activism" without any understanding of the history or the actual process of law-making.

If a party in the original proceedings can show that the judge made an error of law, the decision is overturned on appeal.

The constitution is the supreme law of the land. I suppose what gets people upset is when a judge rules some statute of other unconstitutional, or finds that the legislature failed to carry out some duty specified by the constitution.

Here in Kansas, the state constitution requires us to give our children an adequate education. A judge recently ruled the legislature had failed in that duty by not providing adequate funding to public schools. This got a lot of people upset, talking about "judicial activism." But the judge is not the activist here, it is the legislature. They chose to abrogate their constitutionally required duty to provide for the children's education, not the judge. The judge is required to rule on the suit brought before him by the school districts, and he did.

Well, with the Supreme Court vacancy and events here in Kansas, this seemed a good topic for today's post. Too long as usual. But I hope was worthwhile.

well said!
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