Ask Auntie Pinko
April 28, 2005
By Auntie Pinko
Conservatives today have their seemingly endless array of boogeymen
and scapegoats - the liberal media, the teachers' unions, trial
lawyers, etc. But it seems that few things rile up conservatives
more than "activist judges." They feel that the judiciary has abused
its authority, and subverted the will of the people through the
I have always felt that it was the responsibility of judges
to interpret the Constitution, free from ideological bias (be it
right-wing or left-wing bias). Shouldn't the judiciary be able to
re-examine laws to see if they still hold Constitutional muster,
in the interest of protecting rights? Regardless of one's views
on gay marriage, or abortion, or the death penalty, don't judges
have that role?
Of course judges have made some disastrous rulings over the
years. My question is: what, in your opinion, is the proper role
of the judiciary?
Different parts of the judiciary fulfill different roles. The
jurisdictional divisions are state (which includes local) and Federal
judiciary. Different levels include inferior (lower) or "trial"
courts, special courts, and superior (higher) courts, which include
appellate courts and Supreme Courts. A judge's "job" may vary widely
depending on where she or he serves.
Inferior courts, state and Federal, handle 95% of all the legal
business in the judicial system. They deal with criminal cases (where
the state or Federal government brings the case accusing someone
of contravening a law or laws in the criminal code) and civil cases
(where either the government or a citizen brings the case accusing
someone of contravening a law or laws in the civil code.) Judges
in inferior courts may also assist citizens to carry out various
legal procedures in accordance with the law, such as adopting a
child, probating a will, etc., but in some jurisdictions these matters
are handled in special courts that do not engage in trial procedures
Inferior court judges and special courts have the role of interpreting
what the law says in a particular matter, whether it relates directly
to the adversarial parties (in a non-jury situation) or in ensuring
that a jury understands the law well enough to make a legally valid
decision. They are also charged with the very important responsibility
of ensuring that all of the trial and other procedures in their
courts are carried out in strict accordance with how the law says
they must be carried out.
However, this vast majority of judges is not charged with
the responsibility of ensuring that the law itself "passes Constitutional
muster." Inferior court judges need considerable latitude in deciding
whether something is, or is not, in conformity with the law, because
it is impossible for any legislative body to write and pass a functional
law that will speak clearly and authoritatively in covering every
conceivable set of circumstances relating to that law. The best
legislators can do is to make their intent as clear as possible,
given their knowledge and the conditions obtaining at the time the
law is passed.
Sometimes this task is easier than others. It's relatively easy,
for example, to compose a statute that will make it illegal for
people to intentionally shoot one another - although, even there,
gray areas exist (what if the shooter sincerely believes they have
good reason to believe the shootee is about to cause them bodily
harm, or steal their property? What constitutes "good reason?").
But many states have a law that states that in the event of divorce,
the court must determine what happens to the children of the marriage
based on "what is best for the children." Auntie Pinko is very
glad I don't have to try and determine what that is, over and
over, for hundreds of families in hundreds of different situations,
every year. And I have the most profound respect for the men and
women who take on this difficult work.
However, no matter how difficult or problematic it may be to deal
with these laws, the inferior court judges have neither the power
nor the responsibility to determine whether the laws conform with
State Constitutions or the Constitution of the United States. Their
role demands that they serve the laws as they are written, and as
the judges understand them. The best they can do, if they believe
a real conflict exists, is to refer a case to a superior court.
Superior courts are empowered to determine whether the lower courts
have rendered valid decisions - that is, whether they have appropriately
followed all the procedures the law requires in determining the
disposition of a case, and whether their interpretation of one of
those legal "gray areas" is in accordance with the established practice
for administering that law, as indicated by the precedents and decisions
of other courts in similar matters.
Because "perfect law" is impossible, it is rare for an inferior
court judge, no matter how competent and conscientious, to pass
an entire career on the bench without occasionally having a superior
court reverse something they have done. An occasional reversal does
not mean a judge is a poor judge. However, a judge who is often
reviewed and reversed by higher courts may be a judge whose understanding
of the law varies considerably from the established practice.
The most difficult factor for judges to include in their deliberations
is their understanding of legislative intent, and public will. Laws
are passed by legislators in response to the needs or wishes of
the public they serve. An example would be the laws specifying the
permissible grounds for divorce. These were once extremely restrictive,
and in some cases permitted men divorce on different grounds than
women. One permissible reason was "cruelty." Initially, "cruelty"
was interpreted by most judges as aggravated and severe physical
abuse. However, as public opinion grew more lenient about why couples
should be allowed to divorce, judges' interpretations of "cruelty"
expanded to include verbal and psychological abuse, which may or
may not have reflected the "intent" of those who wrote the laws.
Eventually, the divorce laws caught up with the public will.
In the process of determining whether a lower court judge's administration
of the law is in accordance with acceptable practice, sometimes
an appeals court judge must deal with a conflict that is raised
by the case. There are several kinds of these conflicts. On occasion,
with the best will in the world to do things correctly, legislators
pass laws that are in conflict with other laws. An appeals court
judge may have to sort these matters out. This is made even more
difficult because (as noted) "perfect law" does not exist, and thus
interpretations and enforcement patterns of laws evolve based on
many factors. A recently-passed law, for example, might be in perfect
harmony with the current pattern of enforcement and interpretation
of an older law. Yet does that "current" interpretation of the law
invalidate earlier interpretations?
Again, Auntie Pinko is glad she is not faced with such decisions!
Each and every decision that a judge makes must be carefully explained,
in an "opinion," which cites the reasons for why the judge made
that particular decision. That opinion will be scrutinized carefully
by other judges, and if the attorneys in the case continue to disagree
with it, it may be referred to a higher court for another review
and another opinion. All of these opinions, by all of these judges,
together with the actual statutes themselves and the official records
of trials and lower court proceedings, become part of the body of
information judges must consider in rendering their judgments.
Finally, the highest level courts - state Supreme Courts and the
Supreme Court of the United States - have the ultimate word about
how, and whether, a law may be enforced. Most appeals reach these
"courts of last resort" based on conflicts between laws. Local statutes,
for instance, must give way to state statutes that have already
established "law" in their jurisdiction. State statutes in conflict
with the state's Constitution must be returned to the legislature
to resolve the conflict in accordance with the State Supreme Court's
information on what the Constitution requires. This information
is based on the Supreme Court Justices' study, discussion, and analysis
of that enormous body of information relating to the law as already
established and practiced.
The Justices of the United States Supreme Court are faced with
the same responsibility, the same role, in connection with laws
under Federal jurisdiction. The ultimate law in the United States
is the Constitution. It is easy to say that the Constitution is
inerrant as written, that it clearly reflects the intent of those
who wrote it, and that those intentions should remain, absolutely
without change and interpretation, as the ultimate legal authority
in the United States. Yet a study of the work of the Supreme Court
over more than 200 years shows that there have been "errors" in
the Constitution (rectified by the passage and repeal of amendments),
that its clarity is insufficient to deal with the complex problems
of a socially, economically, and politically evolving State (for
many decades the Constitution as written was deemed to permit the
existence of "Jim Crow" laws disenfranchising a large section of
the population), and that situations the original authors of the
Constitution never imagined must somehow be reconciled with America's
Ultimate Law based on guidance from the eighteenth century.
Contrary to the assertions of many legislators and even some jurists,
the actions of higher court judges do not and cannot "make" law
or even "change" law. Their opinions on how laws relate to other
and higher laws, how they are interpreted and reinforced, etc.,
control only those responsible for enforcing the laws. Legislators
may use the information provided by the courts to create or change
laws, to make them better, clearer, and more compliant with the
existing body of law, including the Constitution. Legislators control
even the highest laws of all - Constitutions themselves, which can
only be amended based on legislative action.
I hope this gives you a clearer picture of what's at stake in
the "Judiciary Wars," Rafique, and thanks for asking Auntie Pinko!
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