06 July 2006

Judicial Philosophy Gone Amok

This is a good example, from a smart judge, of judicial philosophy gone amok.

[S]tatutes [must] be enforced as written even when they seem mistaken or pointless. . . . Laws are not 'harsh' or 'pointless' in any value-free framework; they seem harsh or pointless by reference to a given judge's beliefs about how things ought to work, which is why a claim of power to revise 'harsh' or 'pointless' laws elevates the judicial over the legislative branch and must be resisted.

No. When a judge calls a statute pointless or harsh, more than the judge's own personal values are at play, and there are shared third party norms that are appropriately considered by judges, in the judicial tradition.

First, and most important, we don't have a value-free constitution. There are more sources of values than the judge's own beliefs. Judges are called upon to interpret vague commandments, like one not to impose cruel and unusual punishments, by the United States Constitution. They are not just allowed to do so, they have a mandate to determine when statutes are harsh. The standards may give the legislature significant leeway, but they should not be vacuous. The United States Constitution has liberal, indeed, revolutionary values built into its structure, and you can't ignore those values and be faithful to it.

Also, while a judge is not empowered to change a law simply because he does not like it, this does not mean that the judge should check common sense at the door. Legislatures rarely, if ever, intend their laws to be pointless, and it is uncommon for legislatures to intend their laws to be harsh. The purpose of courts is to carry out legislative intent, not to be slavishly adhere to drafting malapropisms in a manner that does unintended harm to real people.

Legislatures are also not value-free. This is why we look to the legislative history of a statute on occassion. While Judge Easterbrooke is right that judging is not simply a matter of the judge's personal values, that does not mean that a judge may not appropriately look at the values that drove the legislation.

Both of the Supreme Court cases cited by the 7th Circuit in resolving for itself a split of authority between the 1st and 2nd Circuit on the issue before it are badly decided cases. In one, the Court know that its interpretation is based on a legislative oversight. The other puts people away for very long terms based on an interpretation which would admittedly not have been shared by Congress.

The more absurd or unreasonable a result an interpretation of a statute is, the more unlikely it is that this is what the legislature really intended to do. Judges are servants of the law, not robots. They need to see beyond the occassional syntax error. Law are made by humans, not Vulcans.

The result reached by Judge Easterbrooke is not necessarily wrong on the merits, although it is not the only legitimate interpretation of the law, something evidenced by the fact that it is already the subject of a circuit split. There is solid evidence from the legislative history of the particular act he is intepreting that Congress really did mean the interpretation that he intends for a somewhat ambiguous statute. It was enacted in response to a particular court case and reversed that result. But, his generally approach to judicial interpretation of statutes is profoundly wrong and misapprehends the business in which he is engaged.

1 comment:

Andrew Oh-Willeke said...

A similar view is express here.