All Commentary
Thursday, May 1, 1969

Activist Judges and the Rule of Law

Mr. Cummerford practices law in New York City.

Reprinted by permission of The Wall Street Journal, where the article first appeared under the title, “Judicial Jumble,” April 22, 1968.

The formal boundary between responsible self-government on the one side and tyranny or anarchy on the other is often termed “the rule of law.” Never has that ten­uous line been in such danger of obliteration in this country. The rule of law is mocked and attacked, not only by the criminal multi­tude but by supposedly responsible elements. Educators and clergy urge us to break laws we do not like, and eager mobs implement their ideas with destructive vio­lence; labor unions violate laws that impinge upon their power and defy court orders usually with impunity; public officials blandly refuse to enforce the law if their political futures might suffer.

But ironically, it is within the courts themselves that the most serious threat to the rule of law has developed. This comes from a radically new concept of the judi­cial function called “activism.” Judicial activism had its genesis in the Supreme Court about 25 years ago, when some of the Jus­tices began to abandon the age-old principle of stare decisis upon which American and English law had been based for centuries. Stare decisis meant simply that the principles derived from pre­vious decisions formed a body of controlling law for future deci­sions. The primary duty of the judge, after the facts of a case were determined, was to find the law applicable to such facts and decide accordingly, regardless of his personal feelings. On this sys­tem rested what Americans proud­ly called “a government of laws and not of men.”

Judicial activism means that judges strive for what they deem a “just” result in a case in the light of their own philosophies and socio-economic values, with settled legal principles being ac­corded little or no weight. Thus, decisions turn more and more upon “who” is the judge than upon “what” is the law. As a result, law is rapidly losing its certainty, sta­bility, and continuity. Jurispru­dence is becoming the handmaiden of sociology.

This concept of the judicial function reaches its apogee in the doctrine, if that is what it maybe called, that even the meaning of the Constitution itself may be changed by the Supreme Court if necessary to achieve “justice” or “equality.” While the power of the Court to clarify parts of the Constitution in the first instance cannot be doubted, it is no corol­lary that the Court may, at its pleasure, keep changing such meaning. The Constitution specif­ically provides for its own amend­ment with procedures that com­pletely exclude the Supreme Court.

Some contemporary pseudo-scholars of the law would have us believe that judicial activism is a proper function of courts, entirely consistent with the historical de­velopment of law. This is just not true.

Will of the Law

Let us consider what some of the leading legal minds of the past, men whom proponents of activism claim as philosophical antecedents, have thought about the question. John Marshall, our greatest Chief Justice, declared bluntly in a land­mark case: “Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.” Charles Evans Hughes, usually ranked second only to Marshall among Chief Justices, is often cited as an au­thority for the notion that the Supreme Court can change the meaning of the Constitution. This is based on a fragment from an extemporaneous speech in 1907  — “the Constitution is what the judges say it is.” Mr. Hughes an­grily denied having meant any such thing, but the out-of-context words plagued him for the rest of his life and to this day are quoted in textbooks and by professors to justify a concept he abhorred.

Oliver Wendell Holmes, a most influential legal scholar and for 30 years a Supreme Court Justice, maintained that judges should keep their own social and eco­nomic views out of decision-mak­ing. Benjamin N. Cardozo, Mr. Holmes’ disciple and successor on the Court, set forth in painstaking detail the historical and philo­sophical criteria to be employed by judges in reaching decisions. A liberal like Justice Holmes, he did not believe that the law must be static and never change.

He would have been shocked, however, at decisions that lightly discard decades of settled law on the strength of sociological or eco­nomic theories. Justice Cardozo observed: “Lawyers who are un­willing to study the law as it is, may discover, as they think, that study is unnecessary; sentiment or benevolence or some vague notion of social welfare becomes the only equipment needed. I hardly need to say that this is not my point of view.”

Sir Frederick Pollock, probably the chief authority in modern times on Anglo-American juris­prudence, repeatedly cautioned that judges should follow estab­lished precedents and legislative intent, not their personal views, in reaching decisions. Two other important jurist-scholars, Felix Frankfurter and Learned Hand, were extremely critical of judicial activism. Mr. Frankfurter, a pro­tege of Holmes, went on the Su­preme Court a “liberal” in 1939 and retired a “conservative” in 1962 — but it was the Court, not Mr. Frankfurter, which had undergone the greater change. Justice Har­lan speaks of the idea that all social ills can be cured by courts as having “subtle capacity for serious mischief.”

Pure Guesswork

The criticism is not confined to Olympian levels. The legal profes­sion finds it increasingly difficult to know just what the “law” is; hence, attorneys cannot advise cli­ents of the merits of their cases with much assurance. If the out­come of a case depends more on the personal philosophy of the judge than on any other consider­ation, it is pure guesswork. What was once “Constitutional” sud­denly becomes “unconstitutional.” Countless Supreme Court decisions are by 5-to-4 votes, often accom­panied by several different opin­ions and bitter, sarcastic dissents. This is the precarious state of law today.

Some activist judges go to great lengths to make sure that they will not be thought of as having unbiased minds. In speeches, arti­cles, and letters to editors they frequently take positions on con­troversial questions. High-ranking judges have even publicly ex­pressed opinions on delicate ques­tions involved in cases awaiting decisions in their own courts — judicial behavior that a genera­tion ago would have been consid­ered reprehensible.

No matter what euphemisms are employed to disguise its effects, careful reflection must lead to only one conclusion: Judicial activism is not merely inconsistent with the rule of law, it is the total ne­gation of the rule of law. If cases are decided on the personal phi­losophies of judges, then in real­ity there is no law. If the Consti­tution has no objective meaning but means only what judges think it ought to mean, it is not a constitution at all but an empty symbol, a sort of national totem. History shows that vague laws, subjectively interpreted and arbi­trarily applied, are the tools of tyrants. The equation is as old as the human race — power minus re­sponsibility equals despotism.

Out of the vast crucible of hu­man experience and travail we have constructed a splendid sys­tem of law and courts that it is our duty to sustain and improve. The beating heart of that system is the judge. If his mind is a closed one, which recognizes no authority save his own predilec­tions, then all the long shelves filled with law books, the great marble columns and the black robes are but superficial trappings cloaking a travesty.

Judges, like other mortals, need a large measure of humility — the conviction that one human mind can embrace but a tiny particle of all wisdom and knowledge. As one of our most respected living judges, Harold R. Medina, has ex­pressed it so well: “I don’t think I have any propensity or desire to mold the law to my own views… if I had a question of statutory interpretation and I was convinced the statute meant, and was in­tended to mean, one thing, I would never decide it meant just the op­posite because I thought it was desirable social or economic policy to do so. This twisting and stretch­ing is not for me.”

Nor should it be for any judge.