Judges Making the Law (With a Little Blasphemy Discussion)

We hear the term "judicial activism" often bandied about. The term has a number of different meanings, one of which is judges "making up the law." Whether such is good, I won't address. Rather, I note I agree with Erwin Chemerinsky and Catherine Fisk that such is nothing new.

The common law was built on judges making the law under the auspices of "discovering" it by looking up at the “brooding omnipresence in the sky” as Justice Oliver Wendell Holmes once derisively put it.

Justice Scalia, however, argues in this article that post-Holmes' debunking of the metaphysics behind the common law and post-Erie Railroad Co. v. Tompkins (where the Supreme Court announced there was no general federal common law), little justifies judges making law:

But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges and most especially by unelected judges. Even in state courts, it is a rare case that does not involve interpretation of an enacted text. And federal courts have, since the decision of Erie R.R. v. Tomkins [sic] in 1939, completely abjured common-law powers except in a few limited fields such as admiralty; they do not pretend to have the power either to “find” or to “make” a law unevidenced by enacted text or (in cases coming within their diversity jurisdiction) by the text of state judicial decisions.

Scalia may be right. He's certainly right that state judges making law under the auspices of the uncodified "common law" that traces back in an unbroken line to England before America was founded is rare. Though it was much less rare during the time of the American Founding.

Though, when judges do use their common law powers to "make the law," as opposed to interpret a text, such uncodified state law is lower in hierarchy (as in higher law trumps lower law) than a simple state statute. As Walter Berns put it in his classic "Making Patriots":

But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”

That section of Berns' book also discusses the notion that "Christianity" is part of the "common law." Jefferson didn't agree; but some other Founders did. Jefferson essentially blamed the "judicial activists" of his day for that one. But according to the theory of "modern government" to which both Scalia and Berns allude, the common law is a very weak place to rest a "fundamental" principle. It can be trumped by a simple statute or future court decision.

[We debate whether such even exists; but if it does, we can't amend the "laws of Nature and of Nature's God." We can amend the Constitution, but it's very difficult to do. Statutes are much easier to amend. And common law is the weakest of these sources.]

The notion that "Christianity is part of the common law" thus slowly died, mainly in the 19th Century. For instance, in 1837, in one of the few blasphemy cases ever tried in the United States after the Constitution was ratified (I think there were four of them), the Delaware court in The State v. Chandler claimed:

If in Delaware the people should adopt the Jewish or Mahometan religion, as they have an unquestionable right to do if they prefer it, this court is bound to notice it as their religion, and to respect it accordingly. 

 ...

It will be seen then that in our judgment by the constitution and laws of Delaware, the christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt any other, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion. Thus, while we punish the offence against society alone, we leave christianity to fight her own battles, ...

In essence, it claimed a secular rationale for blasphemy prosecutions.

[In one of the other few blasphemy cases, Ruggles v. People of New York, decided in 1811, Chancellor Kent claimed the leaders of non-Christian religions were "imposters."]

Today, most common law bodies of law still relevant have been codified into statutes. But judges are expected to interpret those statutes and sometimes "fill in gaps." Legislatures, in turn, can rewrite the statutes if they don't like how judges have been interpreting them.

One question I ask: According to Scalia's theory, was there ever a "golden age" in America where judges weren't improperly making the law? Scalia seems to concede that prior to Erie, when judges more often "made law" under the auspices of the "common law," judges engaged in something whose justificatory foundation was as solid as that of "Divine Right of Kings." And of course, we know that the 20th Century is the hallmark of "judicial activism."

The record of the judiciary in the 19th Century wasn't spotless either. That period gave us, among other things, Dred Scott, Plessy v. Ferguson, the Slaughterhouse cases and the Holy Trinity case.

But I don't think the few rotten apples spoil the bunch. Most of the present Supreme Court cases are non-politicized; they are boring and uneventful. The newsworthy cases that are politicized with presently Justice Kennedy breaking the tie are the exception. But the exceptions are significant.

My assessment of the judiciary is that it is not unlike the two other branches of government: Don't look for perfection because you won't find it.