Judges & Judicial Process – Page 51 – Marquette University Law School Faculty Blog

Have Some Conservatives Oversimplified Judicial Activism?

Post author:Andrew Hitt
Post published:August 14, 2009
Post category:Judges & Judicial Process

As I watched the recent Sotomayor confirmation hearings, I reached the conclusion that conservatives — at times — can oversimplify the definition of judicial activism. This oversimplification gives credence to those who brush aside judicial activism, i.e., those who say it is merely what one side accuses the other of when they disagree with each other.

Senator Kyl’s questioning on day two provides a good example of this oversimplification.

And has it been your experience that every case, no matter how tenuous it’s been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it [can] make? Some precedent that he’s cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something.

. . .

I can’t imagine that the answer would be otherwise than, yes, you’ve always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be.

. . .

I’m simply confirming . . . that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren’t cases directly on point. That’s true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

This questioning is troubling because it simplifies the idea of judicial activism to such an extent that its meaning is distorted and as a result misunderstood.

The Debate over Statutory History

Post author:Andrew Hitt
Post published:August 5, 2009
Post category:Judges & Judicial Process Wisconsin Supreme Court

An interesting debate about statutory history emerged at the Wisconsin Supreme Court this past term in County of Dane v. LIRC (2009 WI 9). By statutory history, the court is referring to previous versions of a statute, which the legislature has subsequently repealed or revised. Even prior to County of Dane, the court had stated, “By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute.” Richards v. Badger Mutual Insurance (2008 WI 52).

The current debate centers on whether reliance on statutory history is consistent with a plain meaning analysis. Justice Roggensack has asserted, “statutory history is part of a plain meaning analysis because it is part of the context in which we interpret statutory terms.” Chief Justice Abrahamson, on the other hand, asserts that statutory history is inconsistent with a plain meaning analysis because if the text is plain, there is no need to go beyond the text.

While the intellectual debate over statutory history is commendable, the arguments thus far have been misplaced, and as a result, we should refocus the debate. The debate should not center on whether statutory history is consistent with a plain meaning analysis because such a debate does not answer when and how statutory history can be utilized. As such, the current debate is meaningless. Rather, the debate should center on whether statutory history is an intrinsic or extrinsic aid to interpretation.

The Umpire, the Wise Latina, and the Cabinetmaker

Post author:Edward A. Fallone
Post published:July 24, 2009
Post category:Federal Sentencing Judges & Judicial Process Political Processes & Rhetoric U.S. Supreme Court

The confirmation hearings for Judge Sonia Sotomayor are over, and the reviews have been overwhelmingly negative. The public tuned in expecting a discussion of the nominee’s qualifications and a debate on the role of the Supreme Court in our constitutional system. What they got, instead, was a battle of metaphors.

Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire. An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties. The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.

While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal.