Ethics

The following is a note in my Contracts materials.  I'd be interested in any comments.

                            More on Judicial Realism, Judicial Legislation,
                                        and ?Romantic Judging?

With regard to ?judicial legislation,? Justice Antonin Scalia has observed: ?Not only do state court judges possess the power to ?make? common law, but they have the immense power to shape the States? constitutions as well.?  Similarly, Justice Benjamin Cardozo wrote, ?I take judge-made law as one of the existing realities of life.?

Judge Wright was a federal judge, in the U.S. Court of Appeals for the D.C. Circuit.  In Javins, however, he was sitting, in effect, as a state court judge; that is, his court was serving as the highest court for the District of Columbia as a municipality.  Thus, in Justice Scalia?s terms, Judge Wright had the power to make common law.

Judge Wright has provided the following insight into his judicial philosophy and his opinion in Javins:  ?I didn?t like what I saw, and I did what I could to ameliorate, if not eliminate, the injustice involved in the way many of the poor were required to live in the nation?s capital.  I offer no apology for not following more closely the legal precedents which had cooperated in creating the conditions that I found unjust.?

Critics of that kind of judicial philosophy include Harvard Law Professor Mary Ann Glendon.  In her book, A Nation Under Lawyers (1994), Professor Glendon objects to what she calls ?romantic judges? (both liberal and conservative).  In her view, such judges abuse the judicial function by rejecting legal precedents in their effort to reach results that the judges consider to be just.  Glendon finds this kind of judging to be a dangerous violation of the rule of law.

Compare the observation of Chief Judge Judith Kaye, of the New York Court of Appeals: ?[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them....  [A] far greater danger exists that they do not.?

Chief Judge Kaye also has quoted with approval the statement of Justice Cardozo, quoted above, that judge-made law is a reality of life.  However, noting that Cardozo was not advocating unlimited judicial discretion, she added:

Cardozo is careful to stress the limits on a judge?s discretion, and notes that stability and predictability play a significant role in a well-ordered society.  However, he recognizes that, ultimately, the issue comes down to individual wisdom and humanity, writing, ?If you ask how [a judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief from life itself.?

Ninth Circuit Judge Alex Kozinski once told me that his hardest job as a judge is to suppress his own sense of right and wrong in particular cases.  Some years later, in an interview published in ABA Litigation, he said, ?[T]o me, not following the rules is the injustice.... [F]ollowing the rules and having reasonably objective and concrete rules to follow is how justice is done.?  The interview then went like this:

Q:    There is the famous exchange between Learned Hand and Holmes.  Hand was walking with Holmes to the Supreme Court.  As they parted, he said, ?Well, sir, have a good day, and do justice.?  To which Holmes replied, It?s not my job to do justice, but to play the game by the rules.?  Is that what you?re saying?

A:    I think I?m saying something a little bit different.  What I?m saying is, it?s really hard to figure out what ultimate justice is.  I think it?s particularly hard to figure it out if you?re on an appellate court where facts are brought to you in a filtered way.  To me, following the rules is justice because the rules are there for a reason, to maximize justice in society.  So I don?t go beyond that very often.  To me, if the rules have been applied fairly, then a just result has been reached.  But having said that, you do occasionally run into a case where you seem to apply the rules in what appears to be an objectively fair way, and you come up with a result that in some ultimate sense seems to be unjust.  That?s really the test of your resolve, and there are no easy solutions.

Q:    What have you done in that situation?

A:    I hate to say it, but I probably imperceptibly bent the rules to come up with a result I thought was right.

Judge Martin Clark of Virginia has quoted a fellow judge with apparent approval:  ?Every now and then you?re entitled to play the wild card.... Justice can sometimes be a fickle, blind bitch, and somebody has to keep her honest.?  Another way to express that idea is that a judge should listen when ?an instinctively felt sense of justice cries out.?

But Judge Clark also has a judge in his book say: ?I?m always pleased to exercise my discretion, but if I skirt the law, if I cheat or deviate or ignore the rules, then everything I do ? and everything I?ve done ? becomes suspect, its legitimacy lost.  I go seat-of-the-pants, and I?m just a hack, a fraud with a robe and a pocketful of whims and a sheriff and bailiff to make them come to pass.  It?s a slippery slope, as they say.?

Is Judge Kozinski saying that he betrayed his principles and betrayed justice in those cases in which he ?imperceptibly bent the rules to come up with a result [he] thought was right??  Did he become ?a fraud with a pocketful of whims,? or was he entitled on occasion to ?play the wild card? (or to listen to the cry of an instinctively felt sense of justice) in order to ?keep [justice] honest??

Where do you come out on this issue?  Why?