(The Return of) Ignatz, by Sam Heldman

Friday, August 16, 2002

Judicial activism Howard, over at How Appealing -- no, wait, first let me give Howard credit for linking to Tapped's views on the politics of judicial confirmation as well as to more conservative ones -- has urged that we should "restore federal judges to the traditional role of judging rather than forcing them to be arbiters of the most difficult social/legislative issues of the day". Cooped-up has some good response, but I think that I can add two useful points:

1) Asking to return to a time when judges (even federal judges) weren't arbiters of social issues or issues of public policy (to call public policy issues "legislative" of course begs the question) is like asking to return to a golden age when kids obeyed their parents -- there really has never been such an age. I think that it's universally understood among legal historians that the process of judicial development of the common law has always been policy-driven, with judges changing the doctrines to meet the perceived public-policy needs of each age. (A commonly-cited, and only rarely disputed I think, example is the judicial work on the common law of property and torts to aid the growth of railroads in the 19th century). Judges haven't always been upfront about the fact that this what they were doing. But at least ever since O.W. Holmes' "The Common Law" (1901? Help me out here, Cooped), the honest ones have. And, by the way, this wasn't just state-court judges. Until 1938 (all together now, first year law students: "Erie v. Tompkins"), federal judges took it upon themselves to mold the common law in ways that they thought best -- i.e., among other things, best from a public policy standpoint -- even when it was different from what the state court thought. So, put these two insights together, and you have federal judges throughout the history of the republic doing "public policy" lawmaking -- and they're doing less of it now, in this sense, than ever before.

2) Beyond Cooped's good points about legislative behavior being one reason for a more-involved judiciary, here's another one: More than 130 years ago, in a statute that's still on the books, the Congress explicitly instructed the judiciary that it is supposed to hear and decide the cases raising the most difficult social/public policy issues of the day. The statute is 42 U.S.C. sec. 1983, passed shortly after the Civil War. It says (paraphrasing only to put it in lay terminology) that if you think that somebody with a state or local government has violated your constitutional rights, you can sue them for damages or for an injunction in federal court. For reasons having more to do, I think, with the politics and economics of who-had-legal-representation than with the politics of judging, this statute lay dormant (practically unused) for decades. But it was still on the books, STILL THE LAW, still what Congress had told federal judges that they ought to be doing if litigants asked them to, all along. And now it gets used by litigants rather often. So now when people of all stripes quite properly file lawsuits saying "this action violates my constitutional rights, I want $ or an order telling them to stop", the federal courts are SUPPOSED to decide those cases. Because we're talking constitutional rights, we're (almost by definition) talking about "the most difficult social/legislative issues of the day". The federal courts would be WRONG to say "I'm not going to decide that case," because Congress has told them to decide such cases. The federal court would be WRONG to say "I'll decide it, but won't overturn the government action because I don't think that's my proper role." That's why federal courts do, and should, hear all the cases like the Pledge case, Roe v. Wade, Brown v. BOE, Bush v. Gore, and so forth -- because they are obeying a statute enacted by Congress. (Opponents of judicial involvement in such things will be glad to know that, in fact, the courts have made up all sorts of rules limiting their own involvement in such cases, despite the clear and simple language of section 1983 that they should get involved. I think that this tendency has gone too far, but there you have it -- judicial efforts to AVOID being caught up in the difficult issues of the day).

Now maybe Howard is suggesting that the Congress ought to repeal section 1983, and that unconstitutional actions by state and local governments shouldn't be remedied (at least not in federal court)? Maybe so, but I doubt it, and I know that I would campaign with all my heart against such a massive change in our law and culture.

P.S. An Alabamian really can't talk about these issues without thinking of Judge Frank Johnson, who was (not because he wanted to be, but because he happened to be the U.S. District Judge in Montgomery, a thankless job at the time if there ever was one) pretty constantly involved in major litigation on unconstitutional and otherwise unlawful state action. A Republican whom President Carter elevated to the Circuit after decades on the District Court, and a no-nonsense guy (don't think that you could come to court unprepared if you were "liberal", any more than if you were "conservative"), he ordered major reforms of Alabama's institutions because the Congress told him that was his jurisdiction, and the State of Alabama did so many unconstitutional things. He did so, literally, at great personal risk and sacrifice. And he was right. I am not prepared to accept any philosophy of "the proper judicial role" that can't reckon with Judge Johnson.

PPS -- one correction. When I said "Bush v. Gore" above, I was thinking of the federal court litigation that Bush filed under sec 1983, which technically wasn't what the Supreme Court was reviewing in Bush v. Gore. But the point's the same -- Bush, like Brown and Roe and the Pledge dude, invoked the power of the federal courts under the statutory authority of sec. 1983.

posted by sam 6:14 AM 0 comments


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