Judging as Contrasted With Legislating: Questioning a Moral Mission for the Courts

I want to second Rick Garnett’s thoughts about the proper limits of constitutional judging and to further defend the value of opposition to “legislating from the bench” as a useful, albeit incomplete, conceptual framework toward defining the parameters of legitimate judicial authority. I suggest below that this contrast in functions is the very distinction directed by the Constitution itself and further the courts are not vested with and are ill-equipped to perform a mission of moral revision.

I suggest that one good reason to sound out the differences between the judicial role and that of officials in the other branches of government in terms of a contrast between “judging” and “legislating” is that this difference is rooted in the actual text of the Constitution. Article III, Section 1 vests the “judicial Power of the United States” in the Supreme Court and other inferior federal courts, while Article I, Section 1 states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” By explicit and mandatory language, then, the Constitution differentiates the separate powers – and the separate roles – of the judicial and legislative branches. To be sure, saying that one branch has a “judicial” role and the other a “legislative” power cannot be the end of the analysis, as these terms still must be defined and their differences elucidated. But I contend that it is quite an appropriate starting point for analysis. And, moreover, the plain text of the pertinent grants of powers confirms that the judicial and legislative branches are designed to perform different functions and exercise powers of a separate nature.

While by no means capturing the entirety of the distinction between judging and legislating, a subject on which we could spill many barrels of ink, I submit that judges should recognize that they are pressing the envelope of the “judicial Power” when they find that overturning a democratically-reached governmental action would require resolution of a moral question that is open-ended (that is, not dispositively answered by the text and historically-grounded meaning of a specific constitutional provision) and seriously contested (that is, reasonable people in public debate reach different conclusions).

Some years ago, I offered some thoughts on this aspect of the question in a short essay in First Things (still available on-line at this link) that I provocatively titled “The Moral Incompetence of the Judiciary.” I used the term “incompetence” in both senses of that word: that the judiciary lacks legitimate authority to decide moral questions (as contrasted with interpreting legal texts) and that the members of the judiciary are ill-equipped to resolve moral problems. In that essay, I argued that we do not ask our courts to engage in capacious moral or philosophical inquiry, nor should we. As Judge Learned Hand once observed, we have not anointed the Justices of the Supreme Court to rule us as a “bevy of Platonic Guardians.” For that reason, we do not envision a role for the Supreme Court that is heavy with philosophical, moral, and political responsibility (or more accurately, power). Ronald Allen perhaps said it best: “With all due respect to the hard-working and honorable members of the Court, past and present, for whom in fact I have enormous respect, they are not collectively a group that commands our fealty because of the profundity of their moral insight.” (Ronald J. Allen, Constitutional Adjudication, The Demands of Knowledge, and Epistemological Modesty, 88 NW. U. L. REV. 436, 440 (1993).)

In sum, I remain unconvinced that judges possess sufficient knowledge and virtue to undertake a mission of moral evaluation through the episodic venues of cases and controversies. Nor do I believe that the democratic process, of political institutions accountable to the people, is so hopelessly imperfect that the preceptorship of the courts is preferable.

What then is the role of the judiciary? Without intending here to initiate an ongoing debate about textualism versus conceptualism or original meaning versus the living Constitution, I suggest that the role of a constitutional court is preservationist in the best sense, that is, preserving the fundamental values already set forth in the founding charter against new dangers arising in each era. In a rhetorical flourish that (shameless self-promotion coming) of which I’m still kinda proud (I did warn that shameless self-promotion was coming), I concluded a related piece on constitutional review and moral discourse with these words:

“The Constitution is an anchor for our ship of state, not the sail for our voyage to tomorrow. The framers did ordain certain enduring principles, which guard us on our journey and keep the passing waves of tyranny from crashing over us. When the winds of change blast us forward at dangerous speed or when we tack too hard to port or starboard, we depend upon judges of fortitude and legal wisdom to cast the anchor overboard and keep us moored in our traditions of liberty and democratic government. We have not, however, appointed an oligarchy of judges as our governors in law or our counselors in morality. The commission to seek a better and more virtuous society belongs to each of us as individuals and as a collection of diverse local communities and institutions of voluntary attachment. We, the living, must work out our own passage to the new millennium.” (Gregory C. Sisk, Questioning Dialogue by Judicial Decree: A Different Theory of Constitutional Review and Moral Discourse, 46 Rutgers Law Review 1691, 1749-50 (1994).)

Greg Sisk