Judge Sarah Evans Barker delivered a terrific Hallows Lecture at the Law School yesterday on “imaginative judging.” She was engaging obliquely with, and putting a fresh spin on, the otherwise increasingly tiresome debates over “judicial activism.” While the activism debate generally focuses on the law-declaring role of appellate judges, Judge Barker focused on the case management role of trial-court judges. Although case management may seem far-removed from law-declaring, Judge Barker observed that judges operating in either mode may sometimes face situations in which following the conventional rules of formal legal analysis produces absurd results. Where such situations are encountered in the trial court, Judge Barker endorsed the use of imaginative problem-solving. As an example, she cited her own work in bringing together public officials in Indianapolis to address chronic constitutional violations in the local jail. Had she played a more conventional, passive role as the judge in pending constitutional litigation, the result (in her view) would have been a largely ineffectual remedy. By imagining a different sort of role for herself, and engaging the key players outside of the formal legal process, a much better result was achieved.
As with any exercise of judicial discretion (whether at the appellate level or otherwise), the real challenge for “imaginative judging” is to make decisions in ways that do not appear to be arbitrary or biased. If judges aren’t “just following the rules,” how can we be confident their decisions are principled, neutral, and consistent with established public values? Judge Barker argued that meaningful constraints may exist even when judges are operating in the “open area” of discretionary decisionmaking, for instance, the social norms of the legal communty and the practical constraints of enforceability. I would also add process-based constraints to the list, such as the requirements of notice, a right to be heard, and public explanation of decisions. In any event, I think that Judge Barker makes an important point in highlighting the many ways that judges are meaningfully constrained even when operating beyond bright-line rules of substantive law. For instance, in the sentencing context — an area of particular concern to me, and a topic also covered by Judge Barker’s lecture — I think that greater attention to, and strengthening of, these more subtle constraints would help to make people more comfortable with the broad discretion traditionally enjoyed by judges when selecting punishments.