A judge is morally obligated to strive to know and express the felt convictions of our culture, whether announced by the legislature, developed through the common law, or ascertainable by objective scholarship. A judge has no business imposing a personal sense of right and wrong on the rest of society—and certainly has no right or license to impose some creed or formula for uniformity and order based on transient economic or political theories or the desires of any political party.
A judge must be systematic. That means he or she must confine the exercise of judicial authority to established facts and in accordance with orthodox procedure. The appellate judge or justice can only respond to a lower court decision that is under review. Advisory opinions based on suppositions are not permitted. So, too, the review requires examining in detail the record of proceedings in the lower court and carefully studying the briefs and arguments submitted by the parties and amici curiae (friends of the court). Next, the views and analyses of judicial colleagues similarly assigned to the appeal and one’s own tentative conclusions must be discussed, criticized, and evaluated. Finally, a proposed opinion must be reviewed and approved by at least a majority of the judges participating in the appeal.
A trial judge’s primary responsibility is to find facts. Appellate judges and justices have different functions. They provide guidance and supervision to the trial courts, articulate the law that will govern future trial court decisions, and furnish the bar and the public with a body of law capable of being understood and applied with predictability. There is no place in either role for preconceived ideas or notions determined by ideology.
Indeed, a decision based on visionary theorizing or a sociopolitical program is incompatible with the juristic process. In this sense, calling a judge a liberal, neoliberal, conservative, or neoconservative is tantamount to describing a failure to adhere to the discipline of judging. That a specific decision should be considered harmonious with any particular ideology should be a condition neither intended nor pursued.
In sum, citizens have the right to expect judges to be fair-minded, eager to learn, hardworking, and always respectful of the dignity and rights of all persons and parties who appear in court. Any other mission is a desecration of the public trust—no matter the direction in which the political winds are blowing. For judges, the rule of law is the standard to follow as scrupulously as one’s abilities allow so as not to be rattled by political pressure.
Maintaining this discipline is no easy task. For example, I have strong beliefs that the rule of qualified immunity for police and other officials in civil rights cases works more mischief than good. Nevertheless, I apply it as directed in all such cases. Also, I have qualms about the Chevron doctrine, which requires judges to give deference to the interpretation of federal statutes by administrative agencies charged with their enforcement. In specific matters requiring technical expertise, the doctrine is sound, but I think it is overly broad when considering matters of due process such as notice and an opportunity to be heard. Yet, I am bound to apply the doctrine without exception.
The greater that challenge, the harder it is to strive to not allow my emotions to control my judgment. If a lawyer is ill prepared or late or rude, I must bear in mind that the litigant is not. In too many cases to count, I have begun with a belief that one side has the best case, only to conclude after considering all the evidence and applicable law that the other party deserves a favorable ruling. Had I let my displeasure with a lawyer or the interests he or she represents control my thoughts, I would not have made a responsible ruling. Perhaps more importantly, I must always bear in mind that my personal preferences don’t matter. The judicial robe is a constant reminder of my anonymity, not power or prestige.
The “Rule of Acceptance”
This last statement presents an interesting paradox: The judiciary is often considered the least democratic branch of government. Traditionally, it has been most effective when its rulings have reflected the views of the culture at large. Decisions from United States courts that have maintained their legitimacy over time are those that recognized and were guided by the values that had already been debated and accepted by a consensus of the American people. The acceptance has not always been by the majority, but it has always reflected the deep channels of the American psyche. By contrast, the least effective decisions—the decisions most likely to be attacked and vilified—have been those in which the courts have unilaterally imposed principles that are actively and intensely contested in the precincts of American thoughts and values.
This observation is not mine alone, nor did I originate it, but it is why judges and justices may not reach decisions on the basis of ideology. In his monumental work, The Concept of Law, Professor H.L.A. Hart formulated the “Rule of Acceptance.” The rule is the interwoven social understanding of acceptable behavior among one’s own society. In practical terms, this means the law must accept values that are commonly believed to be within the nature, best interest, and right of individuals in order for them to live well together. The operative phrases are “commonly believed” and “live well.”
Through this process, we reach beyond the limitations of personal preferences and idiosyncrasies, appealing to others with whom we aim to build a consensus of what is right and fair. When we share a recognition of common cultural values and references, we achieve a certitude of what ought to be done. In doing so, we are compelled to confront prejudices, platitudes, and biases—our own as well as those of others. It is by this process that we create the institution of law. The absence and rejection of hubris are the essence of the analytic process.
The questions one needs to ask are these: How does a judge distinguish between those values that are readily accepted and those he or she merely prefers? And what path must be followed when that distinction is made?
The path to be followed is the rule of law, not popular whim, transient demand, personal caprice, or partisan ideology.