Judges Make Law, But . . .

I was revising a paper on the relationship between equity and property, and I had occasion to look up this classic line from Justice Scalia:

I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense "make" law. But they make it as judges make it, which is to say as though they were "finding" it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment).

Two justices joined Justice Scalia's opinion. Without looking, can you guess which ones?

Comments

[Michael Resanovic (still highly opinionated)]

No they don't.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You didn't read it very well. In actual fact, the fiction that judges "discover" law is ridiculous, since it doesn't explain how different judges can discover different laws for the same case; witness split decisions by appeals courts and the Supreme Court. That would be like mathematicians discovering different solution o 2+2.

All Scalia is doing is acknowledging it's a fiction.

[Michael Resanovic (still highly opinionated)]

That simply means they discover inaccurately.

Alternatively, it could mean the law is genuinely indeterminate.

If you could pardon my simplistic response, I said it because many grossly misunderstand the scope and character of judicial authority where statutes are silent, something I personally find quite frustrating. Judges have some flexibility in applying preexisting law, whether it is posited, is customary, or is simply self-existing. Furthermore, higher courts in this application of preexisting law set the pattern for lower courts to follow. But the judges of no court can posit law. And it is amazing how many people out there think they can.

[The Margrave of Azilia]

Saying judges need to discover the law isn't the same as saying they're good at it.

[The Margrave of Azilia]

There are those who can’t find their own a______s; that doesn’t disprove the existence of a______s.

[Michael Resanovic (still highly opinionated)]

Writing this one down!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I'm saying it can't be done, proved by split decisions. If split decisions are possible, there is no unique interpretation to discover, and they are merely making law.

Thus the comparison to 2+2.

[Brett Bellmore]

"If split decisions are possible, there is no unique interpretation to discover, and they are merely making law."

Or they're just bad at finding it.

[Dan Schiavetta]

Strange to see a law professor quote from Scalia this way without any detectable sense of irony or sarcasm. At least I can’t detect it.

[The Margrave of Azilia]

He was invoking originalism to say that the judicial power was meant to be interpreted according to the common-law tradition. A tradition where (Scalia says) judges in a certain sense make law.

So, if it’s part of the original intent, the courts must make law! QED.

[Dan Schiavetta]

Is that originalism or not? If so, he’s violated that principle a number of times.

At least “living Constitutionalists” practice what they preach. Originalists by contrast are often hypocrites.

[The Margrave of Azilia]

I'm hardly an originalist (any more), but how do living constitutionalists practice what they preach? Tell me what they preach first. I mean the specific principles, not just "not originalist."

[The Margrave of Azilia]

My attempted edit disappeared.

Anyway, I was going to discuss the late Justice William Brennan’s “human dignity” principle of constitutional interpretation, given as an alternative to originalism:

https://fedsoc.org/commentary/publications/the-great-debate-justice-william-j-brennan-jr-october-12-1985

If a judge says his result is compelled by human dignity, how do we know whether he’s a hypocrite, or practicing what he preaches?

[Dan Schiavetta]

It’s hard for me to imagine that he’s relying on human dignity when he says he’s going by the letter of the law, either via originalism or strict constructionalism.

[The Margrave of Azilia]

"I do not mean to suggest that we have in the last quarter century achieved a comprehensive definition of the constitutional ideal of human dignity. We are still striving toward that goal, and doubtless it will be an eternal quest. For if the interaction of this Justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve."

[Michael Resanovic (still highly opinionated)]

If we recognize an interpretation/construction divide, judges in some sense make law. But in the manner of enforcers of preexisting law, tailoring that enforcement.

For example, English judges recognized that, under the logic of the common law, falsely accusing someone of a capital offense was murder (or attempted murder). A crime the moment it happened, just like normal murder. Malum in se. They acknowledged it.

But in a society that depended on private individuals zealously reporting crime, they didn’t think it acceptable to have people wondering whether they were going to hang if someone later decided the accusation was malicious. Besides, whoever attempted this judicial murder had also committed perjury; they could still be punished for that.

So their office allowed them to recognize something as being inherently criminal, and simultaneously not recognize it as a crime that could be punished. And this was essentially a policy choice.

What they could not do was command that “the whole nation, hereafter shall…”. That’s called lawmaking.

*Source is "Policing and Prosecution in Great Britain from 1750-1850" Really interesting book!

[Dan Schiavetta]

Thanks!

[Dr. Ed 2]

OK, I'll guess --- Alito & Thomas.

[Dr. Ed 2]

I'm wrong. I'll admit when I am but I would NEVER have seen this combination coming...

[Noscitur a sociis]

I’ll admit when I am

Wouldn’t be a Dr. Ed post without a blatant lie!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Wouldn't be a Dr Ed post without idiots responding because they have nothing better to do than make fun of someone who adds real content to articles, unlike them.

[not guilty]

Alito joined the Court in 2006.

[mydisplayname]

That which surrounds the "classic line" is equally interesting:

If the division of federal powers central to the constitutional scheme is to succeed in its objective, it seems to me that the fundamental nature of those powers must be preserved as that nature was understood when the Constitution was enacted. The Executive, for example, in addition to "tak[ing] Care that the Laws be faithfully executed" has NO POWER TO BIND PRIVATE CONDUCT IN AREAS NOT SPECIFICALLY COMMITTED TO HIS CONTROL by Constitution or statute; such a perception of "[t]he Executive power" may be familiar to other legal systems, but is alien to our own. So also, I think, "[t]he judicial Power of the United States" conferred upon this Court and such inferior courts as Congress may establish must be deemed to be the judicial power as understood by our common law tradition. That is the power "to say what the law is," not the power to change it.

[insert originally quoted portion here]

Of course this mode of action poses "difficulties of a . . . practical sort" when courts decide to overrule prior precedent. But those difficulties are one of the understood checks upon judicial law making; to eliminate them is to render courts substantially more free to "make new law," and thus to alter in a fundamental way the assigned balance of responsibility and power among the three Branches.

[Michael Resanovic (still highly opinionated)]

So here’s a hypothetical question for everyone, to illustrate the limits of judicial power:

Do U.S. Marshals have a Terry power, and if so, when did it come into existence?

Historically, there was no such power. To my knowledge, there is no Congressional statute that confers such a power. The 4th amendment, like the Bill of Rights generally, confers no powers on anyone. Did/could judges “make” it?

As I see it, they do not, and judges may not. A court’s legal power – even SCOTUS – is only over the parties before the court, and it is only to bring to bear law/remedies that already exist. The courts cannot create novel obligations binding on members of society. They cannot confer or enlarge a commission. I acknowledge that statutory powers can be implicit, but these go in hand with the explicit grant, e.g. if Terry stops were somehow incidental to USMs arrest power it would have been there all along, and the historical record says no such power existed.

But that’s what I think…do y’all agree/disagree/Michael’s gone batshit crazy disagree? I’d love to hear.

[SRG2]

My initial reaction is that it’s a fiction, as Scalia must have known when he wrote it.

But then when I considered the second part of the quote, what he’s saying is that unlike legislators, who when they pass a law automatically change the law, judges don’t change the law they establish it when there was prior uncertainty.

And this is in practice bullshit.

[CJColucci]

What about Scalia's comment isn't obvious and banal?

[Dilan Esper]

As stated it is fine. He's saying it's a useful legal fiction, which it absolutely is.

But the people who actually think "the law always existed and judges just find it and never make it", without Scalia's qualifications about what is actually going on, are grievously in error.

[Brett Bellmore]

I think the contrary view is not that the law "already" existed, but instead that the only body in government entitled to originate law is the legislature, (Setting aside ballot initiatives!) so that to the extent judges understand themselves to be originating law, rather than just working out the details of laws originated by others, they're engaged in a serious usurpation of power.

It's kind of similar to the problem with living constitutionalism, I think: While it's genuinely true that there is real ambiguity in the Constitution, if you see that ambiguity as a license to insert your own views, rather than a problem, you're going to see a lot more ambiguity than somebody who finds ambiguity a pain in the ass, because you experience ambiguity as empowering.

If you think your job is just to effectuate law originated by others, you may none the less end up originating a bit of law along the way, but much less than somebody who actually thinks originating law is their job.

[Sarcastr0]

Yes, your strawman view of living constitutionalism sure is bad. But being mindful of the social implications of your judicial findings is not the same as becoming a legislator, and even the most radical of Justices (thinking Douglas here) didn't confuse judging, legislation, and activism.

You need to stop confusing your confident 'my telepathy found liberal bad faith' with you establishing anything in reality.

[Lee Moore]

In the same way “being mindful” of your wife’s multi million dollar shareholding in the defendant’s parent company is perfectly fine, so long as this mindfulness has zero effect on your judgement.

What you mean to say is that taking into account your personal views on social policy in your decisions as a judge doesn’t make you a legislator.

Except it does. Just an insurrectionist one.

[Sarcastr0]

'Except it does.' Nice ipse dixit. Because of course you have nothing to back this up, it is just calling stuff you disagree with not just wrong but illegitimate. Fuck off with that illiberal hubris.

That has been the shitty political project of originalism since the 1970s, as it declares liberal justice illegitimate - dividing America to give the conservative project political cover. Irresponsible. (This is different from the later academic project.)

Judges don't need to pay attention to the consequences of their rulings, but it is not 'so clearly I don't need to explain' arrogating legislative power if their jurisprudence includes paying attention.

I would call it bad jurisprudence if it was *purely* consequentialist, but your thesis is vastly more sweeping in the other direction.

[Lee Moore]

Ipse dixits for thee but not for me then 🙂

Impure consequentialism - how does that work ? How does the judge decide how much is just right ? It’s just back to the same old same old - judges use their wisdom and experience to decide the balancing weights to give to their views on social policy and THE ACTUAL FUCKING LAW that’s been written down by the folk whose official job it is to write the law.

Judges are functionaries the whole point of whose existence in the government structure is NOT to have a dog in the fight.

[Sarcastr0]

I mean, I'm saying 'there are lots of legitimate ways to judge' and you're saying 'my way or you're an insurrectionist legislator.'

I suppose they're both kind a statement of principles, yours is just a lot more angry, self-oriented, and divisive.

How does the judge decide how much is just right via *judgement*. That's what judging is - it's making judgement calls, drawing lines, etc. That is, in fact, what they train for and what we hire pay them to do.

You seem to think there is a platonic ACTUAL FUCKING LAW. There isn't. The world isn't simple like that, don't be a child.

It's all about best efforts. And you're declaring a large swaths of efforts illegitimate based on not much.

And the parts you declare legitimate happen to align with your policy preferences.

What a convenient, angry, moral highground you are trying to claim.

[Lee Moore]

“Fuck off with that illiberal hubris”

“The shitty political project of originalism”

are not the best starting points from which to start bleating about the “anger” of those you are arguing with.

No points for self awareness today, I’m afraid.

[Lee Moore]

I’m saying ‘there are lots of legitimate ways to judge’ and you’re saying ‘my way or you’re an insurrectionist legislator.’

No, I’m saying that whatever theory of interpretation you choose to adopt there’s one big, overriding no-no. The only legitimate share in any balancing you do, which may be allocated to your personal political opinions is….. zero.

That’s the one thing that everyone ought to be able to agree on. The judge is not supposed to be a player in the game. He’s the ump. If he has a personal preference for one team or the other, yes maybe that’s understandable. Humans are like that. But all that training should be in helping the judge find ways of suppressing his personal opinions, and trying as best he can to look past them.

Not celebrating them and their role in his judgement. That’s openly and avowedly celebrating bias ! Who had that on their bingo card ?

If you’re correct that judges are trained to use their “judgement” to stir in this amount or that amount of their own personal political opinions to achieve just the right tasting judgement, then it needs to be changed right away. To zero.

I’m hoping that Senator Kennedy takes a brief pause from asking judicial nominees baby legal questions, and asks them whether they agree with you that judges should be stirring in non zero quantities of their personal political preferences into their judgements.

It’s much the same idea as the question of how much touching of children, for the gratification of the teacher, should teachers be trained to think is OK ? This amount ? That amount ? Or none ?

Anyone answering anything other than “none” should not be applying for the job.

[jdgalt1]

Judges make law the way that the Federal Reserve makes money. Namely, they are delegated the magical-seeming power to pull new ones out of their nether regions.

[Sarcastr0]

I agree with Scalia's take, which is not about epistemology but about procedure.
The making, implementation, and elucidation of policy (Leg, Exec, Judicial) are a very fuzzy and overlapping set of authorities. Another way to distinguish who should be doing what is not what is your job, but how you do your job.
This brings different incentives, cultural norms, and internal controls to bear.

It's not perfect, but it is important. And it's the idea of this even being a goal that the facile legal cynics really can't abide.

[Bob from Ohio]

"finding" and "making" and "discerning" are the same thing, judges pretending their subjective belief is "law"

[Sarcastr0]

It’s the idea of this even being a goal that the facile legal cynics really can’t abide.

[Lee Moore]

It’s cynical to think it’s a bad thing for judges to use their subjective preferences to make law ?

[Sarcastr0]

That's not what Bob said, is it?

[Lee Moore]

I understand what Bob said. It’s what you said that is the puzzle.

I take it to be something along the lines of judges pulling stuff from their rear ends because they like the smell of it is (a) good and (b) definitely not legislating from the bench, honest.

But if you could say what you mean clearly I wouldn’t have to guess.

[Sarcastr0]

Here's the thing: '“finding” and “making” and “discerning” are different words, and mean different things.

If you want to declare they mean the same thing, you should do a bit of work.

You seem very into telling me what I actually mean, even when it's some cartoonish nonsense in that contradicts what I've written right above.

[Lee Moore]

Bob’s point was not about the dictionary meaning of the words but what they mean in practice when applied by judges who think adding a few spoonfuls of their own opinions on social policy has something to do with “finding” or “discerning” the law.

It’s precisely because people like you think it’s OK for the judge to sprinkle his or her prejudices on the law that “making” is in this context a synonym for “finding” and “”discerning.”

[Sarcastr0]

If you want to declare they mean the same thing, you should do a bit of work.

[Lee Moore]

Why would I need to do any work, when you've done it for me ?

You have explained that it's a good thing for judges to deploy their own subjective opinions on social policy as a "legitimate" source, when deciding cases.

What else is this but drawing a fake mustache on "making" law, and then euphemising it as "finding" or "discerning" law ?

And then throwing a hissy fit about "facile cynicism" when the fake mustache is pointed out.

[Sarcastr0]

I talked about social consequences – you continue to strawman very hard and say I really mean subjective opinions about social policy.

And further that this thing I did not say is the sole element a judge should pay attention to.

This is the third time I’ve told you not to put words in my mouth. If you’re having trouble understanding what I mean, then ask me don’t create some whole thing.

If you think what I say necessarily implies or is equivalent to the thesis you have created for me, then *do the work* to show that.

[Lee Moore]

I talked about social consequences – you continue to strawman very hard and say I really mean subjective opinions about social policy.

OK let’s roll the tape :

But being mindful of the social implications of your judicial findings is not the same as becoming a legislator,

And we have established I believe that this “mindfulness” involves not mere whimsical taking notice of those implications, coupled with regret that, as a judge, they’re not your business, but actually adding this “mindfulness” as weight in the balance, potentially altering your decision in a case by reference to those implications. Requiring you to make a factual judgment that social consequence B will follow from decision A, and a subjective value judgment that B is a good or bad thing.

Thus there is no distinction to be made between your ”social consequences” and my “subjective opinions about social policy.” It is not possible to place any weight on the scale that takes into account “social consequences” unless the judge deploys his subjective opinion about social policy – ie what Bs will follow from what As, and what value to place on those Bs.

I would call it bad jurisprudence if it was *purely* consequentialist,

Leaving us with the inescapable implication that it’s OK for a judge to be impurely consequentialist. Confirming once more that the judge’s personal value judgments about social consequences are, IYHO, proper items in the judicial balance.

The making, implementation, and elucidation of policy (Leg, Exec, Judicial) are a very fuzzy and overlapping set of authorities. Another way to distinguish who should be doing what is not what is your job, but how you do your job.
This brings different incentives, cultural norms, and internal controls to bear.
It’s not perfect, but it is important. And it’s the idea of this even being a goal that the facile legal cynics really can’t abide.

Making it explicit – or as explicit as Sir Humphrey Sarcastro can make it - that “the MAKING …of POLICY…” is within the judicial authority. It’s not an unfortunate consequence of laws not being 100% determinate, it’s a GOAL.

Bob : “finding” and “making” and “discerning” are the same thing, judges pretending their subjective belief is “law”

You : It’s the idea of this even being a goal that the facile legal cynics really can’t abide.

And again. Judges “making” law is a goal.

[Brett Bellmore]

Just to be clear, are the 'facile legal cynics' the ones who can't abide "making" aw being a goal, or the ones who can't abide "finding" law being the goal? Because the latter look like the real cynics to me, but I'm not sure you don't think the opposite.

[Lee Moore]

I think he means the first - but I resent the effort required to parse his deliberately obscure gnomic utterances.

[Sarcastr0]

deliberately obscure gnomic utterances

Deliberate? Your telepathy is on the fritz. Maybe I’m not as clear as I could be, maybe you’re just bad at understanding people who disagree with your axiomatic take on what's legitimate jurisprudence.

[Lee Moore]

It may simply be that you have been in the habit of writing like Sir Humphrey speaks - and for the same reason - for so long that you can’t write clearly now even if you want to.

[Sarcastr0]

I won't claim to be the best communicator, but I'm also not notably bad.

Your fan fiction gives me way too much credit; I'm not anywhere near important enough to play those games.

[Sarcastr0]

That you insist that different words are the same word, so you can call it all legislation.

That's cynical nonsense.

[Lady Dada]

I guessed Souter and Breyer and was right on both counts. But what’s interesting is the ones who did NOT agree – Rehnquist, O’Connor, and Kennedy. He was joined by Justice Marshall. I am always trying to tell people that the 5-4 rulings are the rare ones.

Thanks for the quiz!

[Alpheus W Drinkwater]

I was up in the air between Souter, O'Connor, and Kennedy. I would not have guessed Breyer. Interesting.

[Roger S]

The Scalia comment is not a right-wing opinion, or even a particularly originalist one. Not sure what is so surprising here.