Judges on Judging

Views from the Bench

David M. O′Brien

• Publisher: CQ Press
• Year: 2016
• Print ISBN: 9781506340289
• eBook ISBN: 9781506340302
• Edition: 5
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Thoroughly revised and updated for this Fifth Edition, Judges on Judging offers insights into the judicial philosophies and political views of those on the bench.  Broad in scope, this one-of-a-kind book features "off-the-bench" writings and speeches in which Supreme Court justices, as well as lower federal and state court judges, discuss the judicial process, constitutional interpretation, judicial federalism, and the role of the judiciary. Engaging introductory material provides students with necessary thematic and historical context making this book the perfect supplement to present a nuanced view of the judiciary.

"Judges on Judging is consistently rated by my students as their favorite book in my class. No other single volume provides them with such a clear and accessible sense of what judges do, what courts do, and the way judges think about their roles and their courts."

—Douglas Edlin, Dickinson College

Part I Judicial Review and American PoliticsHistorical and Political Perspectives

The U.S. constitution, in article III (reprinted in Appendix A), vests the judicial power in one Supreme Court and in any lower courts that Congress may establish. Yet neither the nature nor the scope of that power is defined. Indeed, judicial review was not fully comprehended during the founding period and remains controversial in American politics, although it remains a logical implication of a written constitution. Chief Justice John Marshall in Marbury v. Madison (1803) proclaimed the power of judicial review—the power to strike down laws enacted by Congress or the states and to declare official government action unconstitutional. The historical background, the political drama, and the enduring significance of that decision are described in chapter 1 by Chief Justice Warren E. Burger. After Marbury the Court did not invalidate another act of Congress, and thereby invite national political controversy, until 1857 in Dred Scott v. Sandford—a decision Chief Justice Charles Evans Hughes in the 1930s characterized as a “self-inflicted wound.” The Court nonetheless struck down some forty state and local laws prior to the Civil War, thus legitimating the role of the national government and the power of judicial review.

Subject to the restriction in Article III that the Court decide only actual cases or controversies, and its appellate jurisdiction as established by Congress, the justices are not self-starters—they must await an appeal in an actual case or controversy in a properly framed lawsuit. But whereas the president and Congress are restrained by the ballot box and the processes of democratic government, as well as by judicial review, as Chief Justice Harlan Fiske Stone pointed out, “The only check on [the justices’] exercise of power is [their] own sense of self-restraint.”¹ Chief Justice Stone, however, was only partially correct, for the Court depends on the cooperation of other branches of government and compliance by the people; as an irate President Andrew Jackson reportedly declared, “John Marshall has made his decision, now let him enforce it.”² Accordingly, the Court evolved other, self-imposed rules governing its power. Justice Tom Clark summarized these self-imposed constraints:

The case or controversy presented must be a genuine dispute [with real and adverse litigants], raising a substantial question. The Court does not deal in advisory opinions [or abstract or hypothetical questions], moot questions [already resolved by changing circumstances], or political issues [more appropriately resolved by the president or Congress, or which the Court is incapable of resolving]. Traditionally it shies away from deciding constitutional questions; not rendering such a decision unless it is absolutely necessary to the disposition of the case. Even though a substantial constitutional issue is presented it will not be passed upon if the case can be disposed of on a non-constitutional ground. An appeal from the highest state court is dismissed if that court’s judgment can be sustained on an independent state ground [i.e., if the decision is based on the state’s constitution, the Court will defer to the state supreme court in recognition of the principle of comity]. A statute is not construed unless the complaining party shows that he is substantially injured by its enforcement. An attack on an act of Congress on constitutional grounds is by-passed in the event a construction of the statute is fairly possible by which the constitutional question may be avoided.³

The power and prestige of the Court fundamentally lie with the justices’ recognition of the responsibility imposed by judicial independence under the Constitution and in a system of free government. The Constitution provides for judicial independence with the selection and appointment, as provided in Article II, of members of the federal judiciary by the president with the advice and consent of the Senate (further discussed in chapter 3). Presidential appointment and senatorial confirmation are the principal means by which democratic values are infused into the judiciary.

The selection and appointment of state court judges varies from state to state, according to each state’s constitutional provisions. The methods of appointment include popular—partisan or nonpartisan—election in twenty-one states; selection by governors in three and by legislatures in two states; some combination of both methods in eleven states; and in another thirteen states, along with the District of Columbia, a so-called merit system—under which a commission provides a list of nominees from which the governor makes an appointment and then, after one year of service, the judge’s name is placed on a ballot, with voters deciding whether the judge should be retained or not, for either a specified or an unspecified term.⁴ All federal judges hold their offices during good behavior subject to impeachment (provided for in Article II) for high crimes and misdemeanors (only eleven judges have been impeached and only seven of those convicted). Federal judges enjoy essentially life tenure. The fourth chief justice, John Marshall, served for thirty-four years, and Justice John Paul Stevens served for thirty-four years and six months; both, though, were surpassed by Justice William O. Douglas’s record of thirty-six years and seven months.

Judicial independence, although constitutionally provided for, was actually secured by Chief Justice Marshall. As Chief Justice Earl Warren observed, “Insistence upon the independence of the judiciary in the early days of our nation was perhaps John Marshall’s greatest contribution to constitutional law. He aptly stated the controlling principle when, in speaking of the Court during his tenure, he said that he had ‘never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required.’ That is precisely the obligation of the judiciary today.”⁵

The essence of judicial independence, Judge Irving Kaufman similarly noted, “is the preservation of a separate institution of government that can adjudicate cases or controversies with impartiality.”⁶ The history of the judiciary is replete with examples of judges’ assertions of independence. Justice Tom Clark, for instance, proved a bitter disappointment for Democratic president Harry Truman, who elevated Clark from his position as attorney general to the Court. As attorney general, Clark had advised Truman that he had the power to seize the steel mills to avert a nationwide strike that might threaten the country’s war effort in Korea. But on the bench, Clark voted against Truman in the “Steel Seizure Case,” Youngstown Sheet & Tube Co. v. Sawyer (1952). And Chief Justice Burger, appointed to the Court by Republican president Richard Nixon, wrote for a unanimous Court in United States v. Nixon (1974) denying the president’s generalized claim to executive privilege as a shield against turning over the so-called Watergate tapes, a decision that contributed to Nixon’s resigning from office.

Despite the fact that courts are not self-starters, their self-imposed limitations on judicial review, and the tradition of judicial independence, the judiciary has proven to be neither the least dangerous branch, as Alexander Hamilton envisioned in Federalist No. 78 (reprinted in Appendix B), nor quiescent “under the chains of the Constitution,”⁷ as Thomas Jefferson hoped. The Supreme Court and the judiciary loom large in American politics in part because, as Alexis de Tocqueville observed, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”⁸ Justice Felix Frankfurter likewise commented, “Almost every question in the history of the United States is ultimately shaped for adjudication by the Supreme Court.”⁹ Justice Robert H. Jackson proclaimed more boldly, “This is government by lawsuit. These constitutional lawsuits are the stuff of power politics in America.”¹⁰ The overwhelming work of state and federal courts actually involves rather mundane civil, criminal, and regulatory matters—disputes over contracts, personal injuries, government benefits, labor relations, and the regulation of businesses, public utilities, and health and safety services. The judiciary is nevertheless drawn into political conflicts precisely because the Constitution’s separation of powers among the three branches of government and the federal system amount to a prescription for political struggle. The doctrine of separation of powers, Justice Louis Brandeis pointed out, “was not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”¹¹

The Supreme Court provides a forum for resolving political conflicts, but it is a forum of last resort. Recourse to the Court, James Madison explained, “must necessarily be deemed last in relation to the authorities of the other departments of government, not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments hold their delegated trusts.”¹² The Court provides an “auxiliary precaution,” not the primary check on political passions and conflicts. Denied the power of both the sword and the purse, the Court depends on the cooperation of the coequal branches of government and ultimately public acceptance. In a system of free government, Chief Justice William Howard Taft, the only member of the Court to serve previously as president, observed, “The fact is that the judiciary, quite as much as Congress and the Executive, is dependent on the cooperation of the other two, that government may go on.”¹³ As a political institution and unit of government sharing power, Justice Jackson explains in chapter 2, the Court confronts vexatious disputes between the president and Congress, over the exercise of federal and state powers, from the competition among the states, and arising from persistent and perennial demands to balance majoritarian democracy with the rights of individuals and minorities.

As a guardian of the Constitution and the symbols and instruments of free government, the Supreme Court was destined for controversy. The exercise of judicial review inevitably proves problematic for, as Justice Jackson observed, the judiciary “is an institution of distinctive characteristics which were intended to give it independence and detachment, but which also tend to make it antidemocratic.” There is no “evading the basic inconsistency between popular government and judicial supremacy.”¹⁴ Nor is the Court “saved from being oligarchic because it professes to act in the servic...

Table of contents

• Cover
• Half Title
• Publisher Note
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction
• Part I Judicial Review and American PoliticsHistorical and Political Perspectives
• Chapter 1 The Doctrine of Judicial ReviewMr. Marshall, Mr. Jefferson, and Mr. Marbury
• Chapter 2 The Supreme Court in the American System of Government
• Part II The Dynamics of the Judicial Process
• Chapter 3 The “Fight” Theory versus the “Truth” Theory
• Chapter 4 The Adversary JudgeThe Experience of the Trial Judge
• Chapter 5 The Business of the U.S. District Courts
• Chapter 6 What I Ate for Breakfast and Other Mysteries of Judicial Decision Making
• Chapter 7 Whose Federal Judiciary Is It Anyway?
• Chapter 8 What Really Goes On at the Supreme Court
• Chapter 9 The Supreme Court’s Conference
• Chapter 10 Deciding What to DecideThe Docket and the Rule of Four
• Chapter 11 The Role of Oral Argument
• Chapter 12 The DissentA Safeguard of Democracy
• Part III The Judiciary and the Constitution
• Chapter 13 Commentaries on the Constitution of the United States
• Chapter 14 The Path of Law
• Chapter 15 The Judge as a Legislator
• Chapter 16 The Notion of a Living Constitution
• Chapter 17 A Relativistic Constitution
• Chapter 18 The Jurisprudence of Judicial RestraintA Return to the Moorings
• Chapter 19 Tradition and Morality in Constitutional Law
• Chapter 20 What Am I, a Potted Plant? The Case against Strict Constructionism
• Chapter 21 OriginalismThe Lesser Evil
• Chapter 22 Judging
• Chapter 23 The ConstitutionA Living Document
• Chapter 24 The Constitution of the United StatesContemporary Ratification
• Chapter 25 Originalism and History
• Chapter 26 On Constitutional Interpretation
• Chapter 27Speaking in a Judicial VoiceReflections on Roe v. Wade
• Chapter 28 Our Democratic Constitution
• Chapter 29 Against Constitutional Theory
• Part IV Our Dual Constitutional SystemThe Bill of Rights and the States
• Chapter 30 The Bill of Rights
• Chapter 31 Guardians of Our Liberties—State Courts No Less Than Federal
• Chapter 32First Things FirstRediscovering the States’ Bills of Rights
• Chapter 33 What Does—and Does Not—Ail State Constitutional Law
• Chapter 34 State Courts at the Dawn of a New CenturyCommon Law Courts Reading Statutes and Constitutions
• Appendix A: Constitution of the United States, Article III
• Appendix B: The Federalist No. 78Alexander Hamilton (1788)
• Appendix C: Selected Bibliography of Off-the-Bench Commentaries
• Appendix D: Time Chart of Members of the Supreme Court of the United States
• About the Editor
• Publisher Note