Sunday, July 26, 2009
Judge as a Legislator
I came across an article in TIME magazine that seems to hit right on the issues we are discussing in class. It spoke of the philosophies on jurisprudence that Sonia Sotomayor holds and the issue of being a realist and legislating from the bench, or being a positivist and simply applying the law. At one point it spoke of how she persistently insists on regarding her job to be simply applying the law rather than creating laws as a judge. She thinks that her fidelity to law lies in her strictly abiding by what the law says and that would mean she’s doing her job well. After reading Fuller, I feel that laws are merely the tools which have an underlying purpose which needs to be upheld and the fidelity of a judge to the law lies in how well they ensure the reason for the law’s existence, i.e. what the law seeks to accomplish, is upheld. Therefore, I feel that she wrongly believes that a judge’s job is to only rely on precedence and apply the laws because their actual job is to ensure justice, which may at times need them to act as legislators. It also seems naive to say that no judge ever acts as a legislator since their job leads them to do so very often, and if done well, it can lead to good outcomes. I feel that here the realist and natural law theory somewhat come together. In legislating from the bench, judges are using their own life experiences and other factors to uphold what they think the moral thing to do is. I think it’s a problem that publically acknowledging the fact that judges do so is not accepted; it seems okay for them to do so as long as they’re doing it well. Perhaps there should be rules which allow judges to act as legislators; so that how they do it is regulated, since they’re doing it anyways.
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I feel that it is not right for a judge to act as a legislator while on the bench because this is not in his or her job description. There are checks and balances in our governmental system which restrict judges from making these decisions. I feel that a judge’s job is merely to apply the law as it is written in order to ensure that favoritism and bias do not take place in the courtroom. It is up to congress to write the laws and it is up to the constituents of these congressmen to take up any problems they have with the current laws.
ReplyDeleteThe Supreme Court often has to adjudicate cases where two laws contradict or conflict with one another. Positivist theory dictates that the judge must strictly apply the written law. However, when the two laws conflict it is impossible for the judge to endorse both.
ReplyDeleteIn these types of cases judges must rely on precedent. Yet, what course of action should a judge take if no precedence exists?
If that's the case, judges must rely on their own moral convictions and intuition to adjudicate.
I would also disagree with Judge Sotomayor's thoughts regarding thes status of judges as legislators. My belief is that not only precedence, but any court's decision carries the force of any other positive law.
I honestly think that judges can't strictly adhere to the law and not let their biases and own experiences take part in their decisions. While their jobs mandates for them to follow the law by the letter, they are human and not robots. How can anyone make decision or perform actions without at least subconsciously being motivated by their prejudices? Wouldn't we all like to believe that we could weed out our emotions and make decisions strictly on logic? I think it is impossible. I believe that a judge's job is to find a balance between reading the law accurately and using their own wisdom in judgements.
ReplyDeleteI agree with Brian in stating that a judge’s job is to apply the law as it is on the books. There is no reason that they need to be part of politics that is what we have our elected officials for. There are distinct reasons that we have the checks and balance system in place. If judges were able to create the laws as well as enforce them, this would create a huge problem because there would not be an institution in place to ensure that these laws would be just, thus creating an imbalance in the powers that each branch of the government has. Our founding fathers specifically set up our democratic government in order to maintain a balance of power. If you allow for one branch to over step its bounds, it totally eliminates the balance of power.
ReplyDeleteI do feel that a judges legislative powers should be regulated to ensure that they're done correctly. I can't say that I'm a fan that judges do create their own legislature from the bench as you said, I feel as though it gives the judicial branch entirely too much power since it gives judges the power to overturn, modify, or create laws, which none of the other branches can really do. But at the same time I recognize the fact that it's going to happen and it's only hurting the judicial system to deny it's occurrence, which is why I feel as though regulation is the best option.
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