Judicial Declaration of Public Policy
Journal of Appellate Practice & Process, Vol. 10, Spring 2010
18 Pages Posted: 18 Apr 2009 Last revised: 2 Jul 2009
Date Written: April 16, 2009
Roger J. Traynor admonished us not to "be misled by the half-truth that policy is a matter for [only] the legislators to decide." The courts are continually called upon to weigh considerations of public policy when adding to the content of the common law, when filling in statutory gaps left by an inattentive, divided or politically sensitive legislature and when applying constitutional precepts to changing and novel circumstances. In all these aspects of the judicial process, considerations of public policy may be compelling or even decisive. Policy considerations underpin even the threshold doctrines of justiciability. Determining appropriate public policy plays a prominent role in contemporary adjudication, with a seemingly inexhaustible inventory of social interests pressing upon judges and jurists for attention.
However, recent criticism of judges - whether as lawmakers or as interpreters of constitutional or statutory text - has been particularly strong where they base decisions on considerations of public policy. Such decisions generate controversy on grounds both political and institutional. Public policy issues more readily inspire the familiar labels of "liberal," "conservative," "strict constructionists" or "a Bork-type." They provoke criticism from social, economic and political perspectives. Some critics argue from an institutional perspective, contending that articulating policies for the public interest is the task of state and national legislatures rather than federal or state judiciaries. Depending upon the viewpoint of the critic, judges who seek to advance the common good expressly through policy making are pilloried as either "activists" or "traditionalists." This controversial aspect of judicial responsibilities demonstrates the interplay in the trichotomy of legal philosophy, jurisprudence and jurisprudential temperament.
Most criticism arises from the perception that "policy considerations" lend themselves to greater judicial subjectivity. Certainly, the tendency of judges to find society's values in their own is a constant and real danger. Much adjudication in the federal courts, especially in constitutional interpretations based on concepts of public policy, moral standards and public welfare, is little more than the conscious or unconscious imposition of certain judges' personal values. Many of us who purport to be objective in identifying community values, and who are indeed sincere about it, are actually intent on attaining immediate social ends that we personally see as moral imperatives.
Although much of the controversy concerning judicial implementation of public policy, including criticism of Supreme Court nominee Sonia Sotomayor's comment that the Court of Appeal is where policy is made, is of recent vintage, the practice itself is longstanding and well established in common-law adjudication. This Essay provides an overview of judicial declaration of public policy, and explores some of the concerns associated with the same. It asks and addresses questions such as: How is the judge to ascertain the public interest and the policies that will advance it? How should a judge reconcile what Lon Fuller called the "inner voice of conscience" with prevailing community standards? How may a judge screen out personal bias, passion and prejudice, and distinguish between his or her own taste and the general notions of moral obligation? Where is the threshold at which judges are willing to act in disregard or contravention of prevailing social norms, the extent to which they are willing to confront the "antimajoritarian difficulty"? And how does a judge reach a reasoned accommodation of relevant interests?
Keywords: judiciary, judges, judging, judicial process, judicial activism, writing, opinion writing, legal writing, policy, public policy, policy considerations, courts, federal courts, appellate courts
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