Hastings Law News: February 26, 2001

Author: Art Macomber, 1L, Hastings College of the Law

A central theme of law school is the evaluation of court judgments.  Teaching students the difference between broad and narrow readings of cases sets lifelong templates for professional judgment. What is legal interpretation?  What is judicial activism or restraint?  Judges adjudicate and onlookers comment on the activism or lack thereof.  Terms such as activism and restraint not only signal agreement or disagreement with a decision; they are politically charged code words indicating entire philosophies of law.

Regarding judicial activists and strict constructionists, Karl Lewellyn said:

There is the man who loves creativeness, who can without loss of sleep combine risk-taking with responsibility, who sees and feels institutions as things built and to be built to serve functions, and who sees the functions as vital and law as a tool to be continually reoriented to justice and to general welfare.

There is the other man who loves order, who finds risk uncomfortable and has seen so much irresponsible and unwise innovation that responsibility to him means caution, who sees and feels institutions as the tested, slow-built ways which for all their faults are man’s sole safeguard against relapse into barbarism, and who regards reorientation of the law in our polity as essentially committed to the legislature.

Lewellyn, K., Remarks on Theory of Appellate Decision, 3 Van. L. Rev. 395 (1950).

Whether you believe that human nature and institutions are dynamic or static or, as Lewellyn – both, the law goes through cycles of interpretation.  Looking at United States history, Lewellyn assigned 1820-1850 as the time when “precedent guided but principle controlled.”  Id. at 396.  From 1880-1910, “precedent was to control, . . . principle was to . . . [make] order in the law . . . .”  Id.  From 1920-1947 Lewellyn said judges basically mirrored the 1820-1850 period but wrote in the style of the formalistic 1880-1910 period.  Id.  After that, some onlookers said the Warren Court’s interpretations were driven by activism.  Swinging the pendulum once more, the Burger and Rehnquist Courts are seen primarily as strict constructionists.

Judicial activists look deeper and further when interpreting laws than those who advocate judicial restraint.  Today, these judicial activists look hard to sift laws through a fine sieve, to apply the thesaurus to every word in every variation, to read every statute, record, hearing transcript, ledger, and speech of the legislature looking for reasons why the law reads just so.

An activist’s core argument is that actions of the legislature are the foundation of the law, not the end of the law.  The Court is to build on those foundations so that the enhanced power of the state brings a greater welfare and safety to the populace.  Therefore, the Court should, morally, make laws as well as apply them.

Justice Ginsburg is perceived as a judicial activist, following the path of Justices Cardozo and Brennan.  In their view, the job of the Court is to interpret the law to smooth out inequities in society through an expansive reading of the law.  Justice Cardozo said, “The final cause of law is the welfare of society . . . .”  Cardozo, B., The Nature of the Judicial Process (1921).

Brennan applied this sociological method to interpretation of Title VII of the Civil Rights Act of 1964 in United Steelworkers of America v. Weber, 443 U.S. 193 (1979).  Brennan recognized that the statute on its plain reading would not support affirmative action.  So, he reasoned, “Examination of those [legislative] sources makes clear that an interpretation of the sections that forbade all race-conscious affirmative action would [bring about an undesirable end] and must be rejected.”  Aldisert, R., The Brennan Legacy: The Art of Judging, 32 Loy. L.A. L. Rev. 673, 683 (1999) citing United Steelworkers, 443 U.S. at 201.

Conversely, restrained interpretation adheres to the plain language of the law, reads the law on its face, does not ascribe hidden meaning, strictly construes meaning using standard definitions of words, and clings to long traditions through the mechanism of precedent.  The moral sense of strict constructionists is that a democracy requires citizen involvement through the legislature to make changes to the law so that the whole population has input to the governing process.

On the United States Supreme Court, Justices Scalia and Thomas claim to hew to this type of judicial reasoning.  In their writings, it is clear that they would like the legislature to make the law for the Court to apply, as they see the Court’s job as accomplishing the latter and not the former.  Strict constructionists such as these claim to read the U.S. Constitution as it is written, using their understanding of the founders’ purposes to interpret that law.  Even if the legislature does not construct the law well, strict constructionists will read it exactly as it says, usually interpreting it so the state is harnessed tighter by the law.

Some claim the philosophy of Brennan’s lawmaking decisions and legal interpretation bring America closer to tyranny, a rule of men, and farther from a stable republic under a firm rule of law.  Did the Rehnquist Court accomplish that same deed in deciding the last Presidential election?  See Bush v. Gore 531 U. S. ____ (2000); 121 S. Ct. 525.  Certainly if the philosophy of Brennan can advocate the activist genie out of the bottle, any Court, including Rehnquist’s, could construe the law to their liking with no check on that power.  How did this come to be?  Is there danger in politicizing the Court and undermining the stability of American society?  If precedent and strict constructionism is now optional, instead of mandated by tradition, when did judges stop requiring them?  One influential jurist may provide a clue.

In the late nineteenth century, Oliver Wendell Holmes realized that “in theory any document purporting . . . to have some legal effect has one meaning and no other.” Holmes, O., The Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899).  This could be said of both statutes and common law.  But, this ideal is never reachable.  Searching for a solution, Holmes asked, “How is [the statute or document interpreted] when you admit evidence of circumstances and read [it] in light of them?”  Id.  Then, Holmes discusses a document as having a natural “play in the joints” due to the various possible meanings and so, he argued, we should interpret it based on “what those words would mean in the mouth of a normal speaker of English[,] . . . our old friend the prudent man.”  Id.  If the Court does both, is precedent undermined?  Does it lose its value?  Is there a slippery slope?

As if in support of this possibility, our prudent man has now broken down into several factions (using Madison’s appropriate term) and now, in arguing about female plaintiffs, Rebecca Henry says, “if a [male] judge cannot imagine what women suffer from being harassed on the job, he loses access to a vivid sense of the injustice of the act . . . .”  Henry, R., The Virtue in Discretion, 25 N.Y.U. Rev. & Soc. Change 65, 86 (1999).  How can “[he] fairly decide whether the law offers any remedy for the felt injustice[?]”  Id.  If a male judge cannot empathize with a female plaintiff, must we match the type of judge – and their lawyers too – with the type of plaintiff?  In addition, perhaps different laws should apply for African-Americans or A.A.R.P. members or gays or white supremacists?  Perhaps not.  But, isn’t this necessarily the end result when precedent is minimized, restraint is abandoned and social engineering becomes the order of the Court?

In another example, should courts in product liability suits extend or abolish statutes of limitation “in order to permit the state of the art or technology of science to catch up with a plaintiff’s need to meet his or her burden of proof” in court?  Scott, G., Judge-made Law: Constitutional Duties and Obligations Under the Separation of Powers Doctrine, 49 DePaul L. Rev. 511, 516 (1999).  The blurring of law creation and law application appears to be proceeding apace.  Where is the legislature in this model?  Is the Court’s activism a product of political gridlock in our legislature?  Perhaps, like the three interlocking rings of Budweiser advertising fame, a little overlap and thus dilution of the strict separation of powers is good.  Perhaps it is not.

Justice Scalia will have none of this.  In his lone dissent in Morrison, a case authorizing a prosecutorial independent counsel, Scalia said, “It is not for [the Court] to determine . . . how much of the purely executive powers of government must be within the full control of the President.  The Constitution prescribes that they all are.”  Shea, T., The Great Dissenters: Parallel Currents in Holmes and Scalia, 67 Miss. L.J. 397, 415 (1997) citing Morrison v. Olson, 487 U.S. 654, 709 (1988)(Scalia, J., dissenting).  Therefore to Scalia, judicial restraint is critical to the maintenance of a strict separation of powers with each governmental branch minding their own duties.  In Scalia’s view, the activist approach to legal interpretation threatens the stability of society through the breakdown of that separation of powers.  If this is not the case, it is fair to ask for an outline of the alternate proposed model, to see if we are willing to risk America and our Federalist republic on its test.

As the debate continues to evolve, if “law is more than the will of the sovereign . . . it still must be rooted in human experience, in morality, and must always strive for justice.”  Hartnett, E., Becoming a Lawyer, 25 Seton Hall L. Rev. 863, 866 (1994).  However justice is defined, civility requires empathy and compassion during discussions, with the understanding that this tension will continue as part of the design of our republic.

In order to determine UC Hastings faculty perspectives on this subject, a survey was distributed asking for cases epitomizing divergent views of judicial interpretation.  The survey results are based on five respondents from a surveyed population of sixty Hastings law professors who contributed a core of twenty-two cases.

Respondents view these cases as critical to understanding the meaning of judicial activism and restraint.  Students are encouraged to read the faculty’s examples and find other pertinent readings, such as biographies, cases, and other commentary. The purpose is to expose students to the written argumentation and personalities advocating a particular type of judicial interpretation so that they will be better prepared to advocate such interpretations in their legal careers.  The complete survey results appear near this article.

— (Survey Results to Follow) —

UC Hastings Faculty Survey 2000

1) Please indicate below two U.S. Supreme Court justices, from the history of that Court, and their two official opinions that provide the clearest written examples advocating an expansive reading of the U.S. Constitution.

First Justice                                         Their Clearest Case

Earl Warren                                           Reynolds v. Sims, 377 U.S. 533 (1964)

John Marshall                                        McCulloch v. Maryland, 17 U.S. 316 (1819)

William Brennan                                    New York Times v. Sullivan, 376 U.S. 254 (1964)

William Douglas                                    Griswold v. Connecticut, 381 U.S. 479 (1965)

            Second Justice                                   Their Clearest Case

Roger Taney                                         Scott v. Sandford, 60 U.S. 393 (1856)

Rufus Peckham                                    Lochner v. New York, 198 U.S. 45 (1905)

Earl Warren                                          Miranda v. Arizona, 384 U.S. 436 (1966)

Earl Warren                                          Brown v. Board of Education, 347 U.S. 483 (1954)


2) Please indicate below two U.S. Supreme Court justices, from the history of that Court, and their two official opinions that provide the clearest written examples advocating a narrow reading of the U.S. Constitution.

First Justice                                         Their Clearest Case

George Sutherland                               Home Building & Loan v. Blaisdell, 290 U.S. 398 (1934) (dissent)

Antonin Scalia                                       Michael H. v. Gerald D., 491 U.S. 110 (1989)

Clarence Thomas                                  U.S. v. Lopez, 514 U.S. 549 (1995)

Roger Taney                                         Scott v. Sandford, 60 U.S. 393 (1856)

Second Justice                                     Their Clearest Case

Horace Brown                                        Plessy v. Ferguson, 163 U.S. 537 (1896)

Sandra Day O’Connor                           Allen v. Wright, 468 U.S. 737 (1984)

Felix Frankfurter                                    U.S. v. Korematsu, 323 U.S. 214 (1944) (concur)

Felix Frankfurter                                    W. Va. State Board of Ed. v. Barnette, 319 U.S. 624 (1943) (dissent)

Samuel Miller                                         Slaughterhouse Cases, 83 U.S. 36 (1872)


3) Please indicate below two U.S. Supreme Court justices, from the history of that Court, and their two official opinions that provide the clearest written examples advocating a neutral reading of the U.S. Constitution.

First Justice                                         Their Clearest Case

John Harlan (the elder)                         Plessy v. Ferguson, 163 U.S. 537 (1896) (dissent)

William Brennan                                    Texas v. Johnson, 491 U.S. 397 (1989)

John Harlan                                          Bivens v. Six Unknown Named Federal Bureau of Narcotics Agents, 403 U.S. 388 (1971)


Second Justice                                     Their Clearest Case

John Harlan (the younger)                     Griffin v. Illinois, 351 U.S. 12 (1956) (dissent)

Robert Jackson                                      W. Va. State Board of Ed. v. Barnette, 319 U.S. 624 (1943)

Harlan Stone                                          U.S. v. Carolene Products Co., 304 U.S. 144 (1938)

John Marshall                                        Gibbons v. Ogden, 22 U.S. 1 (1824)


4) Please indicate below your favorite U.S. Supreme Court case.

Case                                                                                                 Why?

Marbury v. Madison, 5 U.S. 137 (1803)                                           Because much constitutional law is imbedded in it.

W. Va. State Board of Ed. v. Barnette, 319 U.S. 624 (1943)           Powerful expression against the State’s ability to dictate opinion.

W. Va. State Board of Ed. v. Barnette, 319 U.S. 624 (1943)           Because it is true and courageous.

Baker v. Carr, 369 U.S. 186 (1962)                                                   . . . protection of individual rights.

Screws v. U.S., 325 U.S. 91 (1945)                                                 Unbelievably shocking case all around.

5) Please indicate below your favorite law review article on any subject.

A) David Currie, The Most Insignificant Justice, 50 U. Chi. L. Rev. 466 (1983). Why?  It’s wickedly entertaining.

B) Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976). Why?  Shifted our paradigm about the structure of modern public law case.

C) Owen Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986). Why?  Because it shows why all modern free speech doctrine is wrong.

D) Aside, Comment, The Common Law Origins of the Infield Fly Rule, 123 U. PA. L. Rev. 1474 (1975). Why?  A subtle parody of law review style and substance.

E) Arthur Leff, Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229 (not available online). Why?  An ongoing challenge between knowledge and belief.


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