Some thoughts on the role of the judiciary

Concepts on which this post is based

In explaining at Tuesday's press conference his nomination of Harriet Miers, Bush repeatedly spoke of judicial philosophy, and these statements express that philosophy:

I don't want somebody to go on the bench to try to supplant the legislative process. I'm interested in people that will be strict constructionists, so we -- and I've told that to the American people ever since I started running for office. I said, vote for me, this is the kind of judges I'll put on the bench. And there should be no doubt in anybody's mind what I believe a judge -- the philosophy of a judge. And Harriet Miers shares that philosophy.

(emphasis added). The emphasized phrases are among the mantras of conservatives and people who want to stop "activist judges." They are professed as absolutes, as in no compromise whatsoever. In our system of government, however, they cannot ever become absolutes.

Supplanting the legislative process

Let's start with the idea that Congress creates the law and the courts are only supposed to apply those laws. That can be done only if the laws created by Congress are comprehensive and crystal clear, or, in other words, the laws have to cover all possible situations and contain absolutely no ambiguities. I have news for you, folks: that never happens, and it never will. There are several reasons for this.

1. The legislative process is necessarily one of compromise. Should you have any doubt about this, consider that the present Congress has Republican majorities in the House and Senate, and yet the House and Senate often disagree over bills. Given that Congress cannot create a law until both the House and Senate pass it, there must be compromise in these situations. Compromise is an inherent part of politics, and when there is compromise, there is often ambiguity. Just as parties to a commercial contract likely want some "wiggle room" (meaning that the language of a contract might allow for several different actions, including getting out of the contract), legislation often contains ambiguities.
2. It is not possible to write any law that will cover every possible situation. No one can foresee everything that could possibly arise in the future.
3. Given #2, it is not possible to eliminate all possible ambiguities.
4. Another reason that it is not possible to eliminate ambiguities is that no one can foresee the effects a given bill will have on the operation and application of all other laws and vice versa.
   

Still don't believe me? Go read some statutes in the United States Code and see for yourself.

As a consequence, courts rarely have the luxury of simply applying the laws created by Congress. Instead, the courts often have to interpret the laws in order to resolve conflicts that are not addressed by the legislative process. Indeed, this is part of the role the judiciary plays. If Congress does not like the courts' interpretation of the law, Congress is free to make a new law that renders the courts' interpretation inapplicable in the future.

Let me state this a little differently. Congress, either due to the effects of compromise or a lack of desire to really do its job, leaves the tough part to the courts. Congress does not or cannot write the laws in a clear manner, so it is left to the courts to clear up the meaning and application of the laws Congress created. Consequently, what we have is not so much the courts supplanting the legislative process as the legislature passing off its responsibility (intentionally or not) to the courts.

And then there are conflicts which arise that are not addressed in part or in whole by statutes. In order to resolve such conflicts, the courts necessarily end up making law themselves. Again, these are situations where the legislature has failed to act. What are the courts supposed to do in these situations? Are the courts supposed to decide nothing and wait for the legislature to pass a law that resolves these conflicts? If you answered "yes," you need several cups of exceptionally strong coffee. This particular topic deserves its own detailed discussion, but I will not undertake that challenge in this post.

Strict construction

Black's Law Dictionary (8th ed.) defines "strict construction" as follows:

1. An interpretation that considers only the literal words of a writing. -- Also termed literal construction; literal interpretation.
2. A construction that considers words narrowly, usu. in their historical context. This type of construction treats statutory and contractural words with highly restrictive readings. -- Also termed strict interpretation.
3. The philosophy underlying strict interpretation of statues. STRICT CONSTRUCTIONISM.

(italics and caps in original). The same dictionary defines "strict constructionism" as

The doctrinal view of judicial construction holding that judges should interpret a document or statute (esp. one involving penal sanctions) according to its literal terms, without looking to other sources to ascertain the meaning.

As shown, "literal construction" and "strict constructionism" are basically the same. With these definitions in mind, let's proceed with a discussion of the two types of "strict construction."

• Literal construction

My guess is that most people who want "strict construction" consider it to be literal construction. For all the reasons explained in the section on the legislative process, literal construction is rarely possible. This pragmatic reality is further seen in another explanation of "strict construction" from Black's Law Dictionary.

"Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operations to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the Legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case." William N. Lile, et al., Brief Making and the Use of Law Books, 343 (3d ed. 1914).

(emphasis added). This explanation shows that, by considering the spirit or reason of the law, literal construction is not practicable.

• Strict interpretation (narrow interpretation)
  

As defined by Black's, strict interpretation is more practicable, but it also has limitations. Basing rulings on historical context can lead to injustice or avoidable delays (such as mentioned in the last paragraph in the legislative process section). Notice that I said "can lead." Strict, or narrow, interpretation is something I generally favor, but even when it is used, pragmatism and flexibility must also be applied to some extent. Courts should consider more than just the historical context of a statute. That historical context might not reflect current society, and current societal views and values should, in my opinion, be considered. More on that later...

Here is an example of why I feel historical context cannot alone be the basis for a judicial decision by the Supreme Court. The landmark case of Brown v. Board of Education, 347 U.S. 483 (1954), ruled that a then legal basis for racial segregation in public schools was illegal:

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

Brown was actually four cases heard at the same time by the Supreme Court. All four cases involved state statutes which either permitted or required racial segregation in schools (see footnote 1 of the opinion). As explained in the opinion, the doctrine of "separate but equal" was established in 1896 in the case of Plessy v. Ferguson, 163 U.S. 537 (1896). If the Supreme Court had relied solely on the historical context of the statutes in question, would there have been any basis for ending racial segregation in public schools?

The Brown Foundation describes the effects of the Supreme Court's decision as follows:

Brown v. Board of Education was not simply about children and education. The laws and policies struck down by this court decision were products of the human tendencies to prejudge, discriminate against, and stereotype other people by their ethnic, religious, physical, or cultural characteristics. Ending this behavior as a legal practice caused far reaching social and ideological implications, which continue to be felt throughout our country.

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The Brown decision initiated educational and social reform throughout the United States and was a catalyst in launching the modern Civil Rights Movement.

In other words, the Supreme Court started major social change in this country. Now, some of you anti-activist court activists will say this is precisely what courts are not supposed to do, and I have three responses. First, in my opinion bringing about an end to legal racial segregation is a good thing for society. Second--again this is my opinion--had it not been for Brown, the chances of the states or Congress passing statutes outlawing segregation would have been slim or none. Third, like it or not, the courts play a role in social change, for, as discussed above, the legislature sometimes cannot or will not pass laws to effectuate social change.

This last point is important. It seems to me that those clamoring for a "strict constructionist" Supreme Court want the Court to make specific rulings in a short time that would affect American society in broad ways. I will not say that such desire is in itself wrong (after all, I just lauded the major societal change produced by Brown v. Board of Education). However, I will say that generally such change does not happen quickly under strict construction. Quick and significant change in the law is done by activist courts.

Strict construction--in the form of narrow interpretation as I have defined it--can result in societal change, but the process is gradual. Moreover, I believe that narrow interpretation is necessary. It is only in that way that the rule of law and precedent can have meaning and effect. This approach requires courts to look very closely at statutes and judicial precedents and place emphasis on those, and yet allows for other factors to be considered which could lead to changes in the law.