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Ask Auntie Pinko

April 28, 2005
By Auntie Pinko

Dear 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 legislature.

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?

Baltimore, MD

Dear Rafique,

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 at all.

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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