Judges Making the Law (With a Blasphemy Discussion)

Burt Likko says:

A couple of thoughts, which are somewhat interdependent. And regrets that I didn’t get to this over the weekend when it was posted.

I was a student of Catherine Fisk when she taught at my law school; at the time she had just become involved with Erwin Chemerinsky, who is now the dean of UC Irvine’s law school. Dean Chemerinsky, in turn, is a leading legal analyst in both academic and popular media, with an unabashedly liberal perspective. It’s entirely appropriate to contrast Chemerinsky to Scalia in that respect, although as a footnote it’s worth noting that the Chemerisnky-Fisk article linked above is from 2005 and was published in the popular press (USA Today) and was not intended to be a particularly sophisticated analysis. Both Chemerinsky and Fisk are more than capable of the kind of deeper intellectual analysis that Justice Scalia offers in his book review.

But to associate “the common law” with contemporary American liberalism would be a grave, grave mistake. I fear that the structure of Jon’s post associates the means by which judges contribute to the law with ideas and notions on the present-day left in a manner that is easily confusing, particularly to those who do follow politics in the news but are not deeply immersed in the law.

Nor is the notion of “common law” necessarily an outgrowth of the school of philosophy identified as “natural law,” and “natural law” in turn is not necessarily (although often is) associated with the notion of a divine lawgiver. Rather, it is based on the idea that there is an unchanging, transcendent core to the law, a core that is inextricably intertwined with concepts of morality. So one might base a natural law philosophy upon a Kantian categorical imperative, for instance. And a natural lawyer might eschew the notion that precedents set by past judges are binding upon future decisions, because future cases may present different permutations of the intent of the parties and the effects of the ruling in ways that the past case did not consider. A positivist or a realist, meanwhile, might readily adhere to the notion of binding precedent; the positivist awaiting instruction from the sovereign to change the law before making a ruling contrary to precedent and the realist determining that predictability of the legal system is of greater importance to its users than effecting a fair outcome in the individual case.

Antonin Scalia himself occupies, and to a large degree personifies, the hybrid of textualism and originalism associated with “conservative” jurisprudence in the contemporary legal world. Recall that for him, the judicial act of interpreting the law and applying it to a particular case sometimes involves a search for the generally-accepted meaning of a word at the time that a law was written. It’s interesting that he delves down into semiotics in the article, as he doesn’t usually get quite that abstract in his casting-about for an exposition on language and communication.

But this originalist-textualist position is at once vulnerable to two criticisms: first, it can be wielded in an example every bit as subjectively and preferentially as the “natural law” Scalia criticizes — the doctrine of searching for an original meaning of words as an interpretative aid seems to only be invoked in cases where there is a claim that the present-day meaning of the words in the law deviate from the perceived prior understanding of those words, and when the result of a contemporary plain-text analysis is pleasing to the judge, it is easy to say the plain text is sufficient to understand the law and not undergo the often-futile search through history to verify that the meaning of a word as used in 1932 or 1868 or 1794 is indeed functionally the same as it is today. So one would only undertake such an analysis when one wishes to search for a way to rule contrary to the apparent plain meaning of a term — and thus, the doctrine only surfaces when the judge has undertaken that effort in as a result of a preference to reach a particular result.

Second, Scalia’s claim of “interpreting” the words of the law by way of understanding the meanings of its words and phrases as they were generally understood at the time they were written rather suspiciously mirrors the very natural-law “discovery” which he claims to criticize. A common-law judge with a natural law intellectual background will believe that a search of statutes and past cases will reveal legislators and judges struggling to discern and apply eternal, non-malleable principles of justice, and undertake her own search through the archives to discern those principles for herself as they relate to the matter before her. A Scalian-style judge will believe that a similar sort of academic review of the law will uncover maybe not a glimpse of Holmes’ brooding omnipresence, but rather an expression of some sort of collective political will: the intent of the democracy, the will of the voters, the desires of the people. Different than combing the common law in a search for principles of justice, but it is still the distillation of an idea from the accumulation of academic evidence, and thus it depends greatly upon the academic performing the analysis.

We also must not forget that even were we to apply the originalist-textualist position Scalia advocates, we are back in the world of natural law, precisely because the authors of our foundational laws during the late Enlightenment were deeply steeped in the notion of natural law as a fundamental aspect of existence. To them, it was “self-evident” that all humans were naturally “endowed” with inherent rights, in much the same way they were endowed with arms and toenails. The theologically-grounded version of natural law which Justice Scalia urges Professor Davis to come out and boldly announce, and persuasively argues that Davis dances around to conform to academic fashion, was a popular but not necessarily exclusive intellectual vision of what the law is and what the law does that existed at the time of the American Revolution and the Federal Era. I say it was not exclusive, because there were other important political and legal thinkers active at the time whose religious beliefs were decidedly unorthodox and in many cases malleable throughout their lives: men like Thomas Paine, Benjamin Franklin, and Thomas Jefferson. Their personal religious identities are important insofar as we may understand their roles as authors and intellectual contributors to the great events of our political, cultural and legal history — although the intellectual battle for various tribes to claim them is, in my opinion, simplistic and driven by a desire to cultivate hero-worship rather than understanding, and ultimately of little legal importance to the extent that we eschew interpretive models such as Scalia’s (which we might very well do were we to adopt morality-driven models like the intensely religious flavors of natural law, which Scalia seems to admire even if he does not quite adopt them).

Finally, Scalia’s article, and by extension and adoption Jon’s post here, suggests that judges have little opportunity to craft new law through the process of the common law. I’m quite skeptical of this proposition, perhaps because I see the accretion of common law as a constantly-iterative process and view nearly each and every case that judges publish as such a contribution. It’s hard, especially with modern electronic legal research tools, not to see how a concept from one case propagates into successor cases, and how the notions within those cases populate the caselaw — much as the way that a parent has children who resemble her and act like her, but are not her, and those children leave the home and populate their communities. As I see it, judges are engaged in the continued development of the common law every day, whether those judges sit on the Supreme Court of the United States or on a small claims court in Moosepiss, Montana. The intellectual contribution to the development and refinement of the law in a smaller case that stays well within precedent may well be small to the point of being trivial. But it is not nonexistent.

TL/DR: common law does not mean natural law and neither of those phrases should be associated with either the contemporary political left or right; Scalia’s originalism is congruent with but not the same thing as a theologically-based natural law; and I say that judges nearly everywhere create law nearly every day, and that it’s an undramatic and incremental process which, unless it is done very poorly, is not at all cause for concern to pretty much anyone.Report