Philosophy, Jurisprudence and Jurisprudential Temperament of Federal Judges
63 Pages Posted: 11 Jun 2009 Last revised: 5 Jul 2009
Date Written: 1987
After twenty-five years as a judge, I find myself somewhat uncomfortable because I am unable to pigeonhole myself into the fashionable categories used by political scientists, respected law professors, lawyers, and both the print and broadcast media to describe judges. I feel somewhat inadequate because I simply don't know if I am a "liberal," "conservative," activist," "strict constructionist," "centrist," "moderate," etc. Although these expressions are so commonplace that obviously many must have an idea what they mean, I'm not quite sure that these expressions are likely candidates for definitional prizes in explaining what they mean. These descriptions probably originated in the political arena as handy one-word pejoratives, but they surely have caught on and are very much with us today.
I have been a judge-watcher for a long time, and my view has been an unusual one, because it has been from the inside looking both out and up; looking out at fellow appellate judge and looking up to the Supreme Court justices who review our work. I do this watching because my avocation, if you call it that, is studying the judicial process. By this I mean a study of methods - of how courts decide cases; an analysis of decisionmaking as it actually takes place and as it ought to take place. As a long time student who still believes he has a long way to go, I put aside, for our immediate purposes, the substantive law that is the product or result of this process. in these pages, I will content myself only with examining the process itself.
The more I think about the judicial process and one-word labels bandied about to describe those who make the process work, the more I'm convinced that this splash and dash is a very ineffective attempt to cover a very complex individual - today's federal judge. This is true when describing any judge, but it is even more so when you describe federal judges, especially federal judges on the appellate hierarchy's two top tiers.
Part I of this expansive article explores theories of "liberal" and "conservative" with regard to legal philosophy and decisionmaking, the "big five" supereminent first principles in the law (e.g. creating and protecting property interests, creating and protecting liberty interests, fulfilling promises, redressing losses caused by breach or fault, and punishing those who wrong the public), jurisprudence, and jurisprudential temperament.
Parts II and III examine "The Judge as Lawmaker" and "The Judge as a Declarer of Public Policy," covering theories and critiques of judicial law - and policymaking. Part IV discusses constitutional law interpretation" by judges, using examples from the bench such as John Marshall and the Warren Court, and exploring the interplay of universal principles and public opinion in light of the "federal courtization" of society, public distrust of state institutions, and the dichotomy between civil and criminal law. Part V focuses on statutory construction and problems of statutory interpretation including interpreting unclear norms and lacunae or nonexistent norms. Part VI highlights the necessity for reasoned elaboration for judicial decisions.
The article concludes that jurisprudence controls ninety percent of the cases before federal judges, and the particular jurisprudential temperament of the judge and his or her legal philosophy do not figure large in affecting the outcome. In the remaining ten percent, the judge's complex personality comes under examination and dissection, and here "[o]ur judges run the gamut from playing the game according to the rules to making up the rules as we play the game."
Keywords: judges, judging, jurisprudence, judiciary, judicial process, lawmaking, policymaking, Aldisert, judicial philosphy, logic, legal philosophy
Suggested Citation: Suggested Citation