Yes, Judges Do Make Law

Scott Sumner has just written an interesting comment to my previous post in which I criticized a remark made by Judge Gorsuch upon being nominated to fill the vacant seat on the Supreme Court — so interesting, in fact, that I think it is worth responding to him in a separate post.

First, here is the remark made by Judge Gorsuch to which I took exception.

I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge . . . stretching for results he prefers rather than those the law demands.

I criticized Judge Gorsuch for denying what to me is the obvious fact that judges do make law. They make law, because the incremental effect of each individual decision results in a legal order that is different from the legislation that has been enacted by legislatures. Each decision creates a precedent that must be considered by other judges as they apply and construe the sum total of legislatively enacted statutes in light of, and informed by, the precedents of judges and the legal principles that have guided judges those precedents. Law-making by judges under a common law system — even a common law system in which judges are bound to acknowledge the authority of statutory law — is inevitable for many reasons, one but not the only reason being that statutes will sooner or later have to be applied in circumstances were not foreseen by that legislators who enacted those statutes.

To take an example of Constitutional law off the top of my head: is it an unreasonable search for the police to search the cell phone of someone they have arrested without first getting a search warrant? That’s what the Supreme Court had to decide two years ago in Riley v. California. The answer to that question could not be determined by reading the text of the Fourth Amendment which talks about the people being secure in their “persons, houses, papers, or effects” or doing a historical analysis of what the original understanding of the terms “search” and “seizure” and “papers and effects” was when the Fourth Amendment to the Constitution was enacted. Earlier courts had to decide whether government eavesdropping on phone calls violated the Fourth Amendment. And other courts have had to decide whether collecting meta data about phone calls is a violation. Answers to those legal questions can’t be found by reading the relevant legal text.

Here’s part of the New York Times story about the Supreme Court’s decision in Riley v. Califronia.

In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

But he added that old principles required that their contents be protected from routine searches. One of the driving forces behind the American Revolution, Chief Justice Roberts wrote, was revulsion against “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”

“The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”

Now for Scott’s comment:

I don’t see how Gorsuch’s view conflicts with your view. It seems like Gorsuch is saying something like “Judges should not legislate, they should interpret the laws.” And you are saying “the laws are complicated.” Both can be true!

Well, in a sense, maybe, because what judges do is technically not legislation. But they do make law; their opinions determine for the rest of us what we may legally do and what we may not legally do and what rights to expect will be respected  and what rights will not be respected. Judges can even change the plain meaning of a statute in order to uphold a more basic, if unwritten, principle of justice, which,under, the plain meaning of Judge Gorsuch’s remark (“It is the role of judges to apply, not alter, the work of the people’s representatives”) would have to be regarded as an abuse of judicial discretion. The absurdity of what I take to be Gorsuch’s position is beautifully illustrated by the case of Riggs v. Palmer which the late — and truly great — Ronald Dworkin discussed in his magnificent article “Is Law a System of Rules?” aka “The Model of Rules.” Here is the one paragraph in which Dworkin uses the Riggs case to show that judges apply not just specific legal rules (e.g., statutory rules), but also deeper principles that govern how those rules should be applied.

My immediate purpose, however, is to distinguish principles in the generic sense from rules, and I shall start by collecting some examples of the former. The examples I offer are chosen haphazardly; almost any case in a law school casebook would provide examples that would serve as well. In 1889, a New York court, in the famous case of Riggs v. Palmer, had to decide whether an heir named in the will of his grandfather could inherit under that will, even though he had murdered his grandfather to do so. The court began its reasoning with this admission: “It is quite true that statues regulating the making, proof and effect of wills, and the devolution of property, if literally construed [my emphasis], and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.” But the court continued to note that “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” The murderer did not receive his inheritance.

QED. In this case the Common law overruled the statute, and justice prevailed over injustice. Game, set, match to the judge!

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14 Responses to “Yes, Judges Do Make Law”


  1. 1 jalposts February 5, 2017 at 10:05 pm

    Your quibble with Judge Gorsuch’s statement seems built on straw. Do you really think that Judge Gorsuch was unaware that in some cases (e.g. Riggs) judges do make law? I think it more likely he was talking about his conception about what the judges role should be; and if Riggs was before him he would have sided with Judge Gray’s dissent (the strict constructionist view of the slayer rule).

  2. 2 David Glasner February 5, 2017 at 10:15 pm

    jalposts, I don’t follow your comment. If Riggs were before Gorsuch, and he would take the strict constructionist view, then a) he is an idiot, and b) if a similar case came before him, he would be an even bigger idiot if he wouldn’t the follow the precedent of Riggs, as I am sure, most judges, thank Heaven, would. If Gorsuch rejects Riggs, he’s doesn’t deserve to be on the court.

  3. 3 gofx February 5, 2017 at 10:21 pm

    David, I think your original post criticizing Gorsuch for a “monumental denial of reality” is confusing a normative statement and a positive statement. Textualists, like Scalia and others try to balance the effects common law, statutory, and executive (administrative) law. Yes, English common law is one of the bases of American law. But even the supreme court placed limits on federal judges creating common law with respect to certain areas of state law (Erie Railroad Co. v. Tompkins). So while common law remains important, judges are no longer the King’s agents attempting to standardize decisions and principles across the realm. Along came democracy, legislatures and executive-branch regulations. There is still plenty of scope for common law, but there is more and more “prescribed” laws and rules.

    Here is Scalia in “Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws””
    “But though I have no quarrel with the common law and its
    process, I do question whether the attitude of the common-law
    judge–the mind-set that asks, “What is the most desirable resolution
    of this case, and how can any impediments to the achievemnet
    of that result be evaded?”-is appropriate for most of the
    work that I do, and much of the work that state judges do. We
    live in an age of legislation, and most new law is statutory law.
    As one legal historian has put it, in modern times “the main
    business of government, and therefore of law, [is] legislative
    and executive …. Even private law, so-called, [has been] turning
    statutory. The lion’s share of the norms and rules that actually
    govern[} the country [come) out of Congress and the legislatures.
    . . . The rules of the countless administrative agencies
    [are] themselves an important, even crucial, source of law.”
    This is particularly true in the federal courts, where, with a
    qualification so small it does not bear• mentioning, there is no
    such thing as common law.”

  4. 4 JG February 6, 2017 at 8:43 am

    Hi David,

    why don’t you contact a conservative legal scholar with a different opinion and post his reply? It would be nice to see both views side by side.

  5. 5 Frank Restly February 6, 2017 at 3:51 pm

    David,

    “Well, in a sense, maybe, because what judges do is technically not legislation. But they do make law; their opinions determine for the rest of us what we may legally do and what we may not legally do and what rights to expect will be respected and what rights will not be respected.”

    But they do not make law that must be upheld under similar circumstances. Two separate courts can reach decisions in similar cases that are at odds with each other and both can still be binding. Perhaps you are aware of:

    United States vs. Dunn

    It is as much a mistake to think that a judge is bound by the precedent of previous decisions as it is to think that a judge is bound to only what the drafters of legislation could possibly foresee.

  6. 6 Frank Restly February 7, 2017 at 8:14 am

    David,

    Interesting bit about the Riley v. California case – how is ownership of a cell phone established? Obviously, if the cell phone requires a monthly payment plan, then the billing records will indicate ownership of the phone. But what if the cellphone is prepaid?

    Obviously, a cell phone carried by a person can be personally bought and paid for, borrowed from a third party (boyfriend / girlfriend), or simply stolen.

    Nonetheless, there could be information on the phone that belongs to person currently in possession of the phone. Are that person’s rights to illegal search and seizure protected when possessing borrowed / stolen property?

  7. 7 jalposts February 7, 2017 at 12:43 pm

    David in your reply to me you stated that “If Gorsuch rejects Riggs, he’s doesn’t deserve to be on the court.”

    As the judicial offspring of Judge Scalia, who rejected the majority’s decision in Riggs, I can only assume that Judge Gorsuch would also rightly reject Riggs. In “Scalia and Garner’s Reading Law: The Interpretation of Legal Texts,” Justice Scalia describes how “good judges” decide cases. In his textualistic approach to judicial decision making, Scalia believed that “legislators enact; judges interpret.” (This was a normative observation, not an empirical one as the book is replete with cases of judges who decided cases qua legislators). According to Scalia unless a statute permits or directs otherwise, the judge’s application of a statute to a case should be limited to an interpretation of the statute’s text. To do otherwise usurps the legislative function and is anti-democratic.

    In Riggs, the court was faced with a statute of wills, which provided for the manner in which a will was executed, amended and revoked. Nowhere in the statute did it provide that a beneficiary’s killing of a testator caused a revocation of the testator’s gift to the beneficiary.

    Justice Scalia discusses Riggs in the context of the
    “Omitted-Case Canon Nothing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est). That is, a matter not covered is to be treated as not covered. ‘Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. [The judge] must not read in by way of creation.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 533 (1947). The principle that a matter not covered is not covered is so obvious that it seems absurd to recite it. The judge should not presume that every statute answers every question, the answers to be discovered through interpretation. As the noted lawyer and statesman Elihu Root said of the judge: ‘It is not his function or within his power to enlarge or improve or change the law.’ Nor should the judge elaborate unprovided-for exceptions to a text, as Justice Blackmun noted while a circuit judge: ‘[ I] f the Congress [had] intended to provide additional exceptions, it would have done so in clear language.’ Yet some authorities assert the judicial power, even the judicial responsibility, to supply words or even whole provisions that have been omitted. Some of them [like the majority in Riggs] would have the court ‘reconstruct what the enacting legislature would have wanted” if it had addressed the overlooked case.”

    And in applying this canon to Riggs:

    “Other asserted exceptions are infirm. An example is the maxim that no one can benefit from his own wrong (nullus commodum capere potest de injuria sua propria). The principle was invoked most starkly in a series of cases decided before the mid-20th century, when the question arose whether a murderer could inherit from his victims. At the time, the relevant statutes dealing with wills and intestacy did not explicitly address whether the wrongdoer could inherit. So there was no authoritative text to prevent the inheritance. As a general matter of right and wrong, all of us recoil from the thought that a murderer could advance his heirship. In one case, a grandson murdered his grandfather to prevent changes in a will under which the grandson would inherit. The New York Court of Appeals decreed that he take nothing. By contrast, an Illinois case essentially allowed a defendant who murdered his mother, father, and sister to become heir to their entire estates. Most cases agreed with the Illinois murderer-can-inherit holding, which we believe is textually correct. Today, all states have statutes that explicitly deal with this problem—saying, for example, that a person who “feloniously and intentionally kills the decedent forfeits all benefits.” The universal enactment of such laws illustrates what happens when courts (as most did in this instance) apply an unwise law as written. If the defect is serious, the legislature will cure it. The statute books will become more complete, and improvised judge-made exceptions that cannot be found in the text of enacted laws will be less numerous.”

    In Riggs, the majority believed that they were doing the work of the legislature as when Judge Earle states that:

    “What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly, peaceable, and just devolution of property that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession of his estate? Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.”

    Clearly the Riggs court believed it was acting as an extension of the legislature and that it had a right to do so in order to achieve what it believed to be more just result in the particular case. For Scalia and Gorsuch faithfulness to what they understand their judicial role to be in our tri-branch system of government is a first order principle that is more important than the outcome of any one case. The Scalia-Gorsuch understanding of the judiciary’s role is consistent with our federalist system of government.

    While Judge Gorsuch understands that judges “make law” as was done in Riggs, he (rightly) rejects such judicial legislation because it would usurp the legislature’s power and authority. For the foregoing reasons I think that using a Riggs litmus test to determine Judge Gorsuch’s fitness to be a SC Justice is wrong.

    As to your other comment about whether Judge Gorsuch would consider a wrongly decided case like Riggs as precedent, I will let you know after I have read the recently issued text entitled “The Law of Judicial Precedent” that Judge Gorsuch co-authored with Bryan Garner and 12 other appellate judges.

  8. 8 David Glasner February 8, 2017 at 9:24 am

    JG, I don’t know any originalist law professors. I would welcome a contribution by an originalist if you know anyone, have him contact me. By the way, Although I don’t consider myself to be a legal scholar, I do think that my views about the law including Constitutional law are quite
    conservative, in that I don’t view the role of judges to be social reformers. In that respect I think I understand what motivated Scalia. His mistake was to believe that the key stopping judges from being social reformers was to invent a populist legal ideology called originalism that nobody had ever heard of until Robert Bork started talking about it and convinced a whole generation of conservative lawyers that originalism would save the country from activist judicial reformers.

    Frank, What it means to be bound by precedent is not always clear. If a judge is able to distinguish the facts of the case he is deciding from the apparently contrary precedent in an earlier case, he can uphold both the precedent and reach a new decision that narrows the range of applicability of the old precedent. That is what judges often do when they apply a statute. They don’t reject the statute but they limit in some fashion its range of applicability.

    You raise a number of interesting hypotheticals about the cell phone case. Presumably, they will be fleshed out in future cases. No statute can cover all possible factual scenarios, so in any reasonable legal system (i.e., one not governed by Scalia’s textualist obsessions) judges work those questions out over time in the course of deciding cases.

    Jalposts, And I repeat that Scalia’s position is prima facie absurd, and the fact that it has become the holy grail of modern conservative jurisprudence is just an intellectual scandal of monumental proportions.

    You said:

    “For Scalia and Gorsuch faithfulness to what they understand their judicial role to be in our tri-branch system of government is a first order principle that is more important than the outcome of any one case.”

    Please explain to me what is the Constitutional textual/originalist basis for saying that the so-called(!!!) first-order principle of “faithfulness to what they(!!!) understand their judicial role to be in our tri-branch system of government” somehow has the slightest claim to precedence over the common-law principle “that no man shall profit from his own wrong.” I will pick the latter over the former every time.

  9. 9 Scott Sumner February 10, 2017 at 6:19 pm

    I still don’t see the distinction, beyond semantics. What you call “making laws” I call “making interpretations of laws”. But if you insist that it really is making laws, then I would just say that judges should try to make as few laws as possible.

    Maybe this example would help. There is the prohibition on cruel and unusual punishment. One way of thinking about that rule is in terms of what people thought was cruel in 1785. Another way is thinking in terms of what people regard as cruel today. I favor the latter. I think the framers intended cruel and unusual to reflect contemporary standards. (That does not mean I think the death penalty is unconstitutional, BTW, as I’m not quite sure what the view of the America public is today. But public whipping is probably viewed as more cruel today than in 1785.)

  10. 10 Frank Restly February 12, 2017 at 11:01 am

    Scott,

    “I still don’t see the distinction, beyond semantics. What you call making laws I call making interpretations of laws.”

    Presumably, two judges can both “interpret” the law and both be equally valid in their rulings even if their rulings contradict each other. This would result in both rulings being non-binding to the next judge that decides a similar case (precedent does not hold).

    Judges are sometimes required to fill in the gaps in statutory law, but their rulings are not binding in the same way that statutory law is binding.

  11. 11 ProfitMaximiser February 12, 2017 at 2:06 pm

    I appreciate that there is a deep legal argument here that I’m not qualified to comment on which you may be right about. But with Scalia and Gorsuch it seems there’s something true-in-spirit to what they’re saying which is the following. The general public is roughly distributed 50-50 between “the Left” and “the Right” which a priori would lead you to expect about half of all new legislation to be left-leaning, half right-leaning. However lawyers are overwhelmingly on “the Left.” If lawyers are given the power to reinterpret or overrule laws that conflict with “common sense” or intuitive notions of “justice” then on any politically charged issue “common sense” becomes left-wing notions of common sense and intuitive “justice” becomes left-wing notions of intuitive justice. The right-leaning sections of the electorate are therefore partially disenfranchised of their power to control their laws. Scalia and Gorsuch, being on “the Right”, don’t like this.

  12. 12 jalposts February 14, 2017 at 1:16 pm

    David: you assert that Scalia made a mistake in believing that the key stopping judges from being social reformers was to invent a populist legal ideology called originalism that nobody had ever heard of until Robert Bork started talking about it and convinced a whole generation of conservative lawyers that originalism would save the country from activist judicial reformers.

    Whatever you call it, textualism or originalism, Scalia’s methodology for statutory interpretation was not his “invention.” For example, in his 1899 law review article, Theory of Legal Interpretation, 12 Harv. L. Rev. 417 Justice Holmes discusses why the central focus of the judge in interpreting the written (statutory) law must be the text of that law and not the mythical legislative intent:

    “Yet in fact we do not deal differently with a statute from our way of dealing with a contract. We do not inquire what the legislature meant; we ask only what the statute means. In this country, at least, for constitutional reasons, if for no other, if the same legislature that passed it should declare at a later date a statute to have a meaning which in the opinion of the court the words did not bear, I suppose that the declaratory act would have no effect upon intervening transactions unless in a place and case where retrospective legislation was allowed. As retrospective legislation it would not work by way of construction except in form.” Id. at 419 and 420.

    David: You assert that Scalia’s, (and presumably Holmes’, Easterbrook’s and other noted jurists’) method of statutory interpretation is “absurd” but don’t really explain why. Take a Riggs-like case. Assume the legislature has enacted a statute covering wills that includes specific rules for how a will may be revoked either voluntarily (tear-up the will) or involuntarily (e.g. the gift violates the rule against perpetuities). The common-law slayer rule is absent from the statute. Its absence could be explained for any number of reasons. For example: Perhaps the legislature considered a slayer statute and decided not to include it because of any of the following reasons: Typically the perpetrator of the felonious murder will be incarcerated (or worse) preventing the murderer from receiving any meaningful benefits from the inheritance; or the slayer rule is most likely to be invoked in a familial situation in which case the murder is most likely to be committed in the heat of the moment without forethought of receiving any inheritance; or the murder is likely to occur in a good many cases in which the murderer had suffered physical abuse at the hands of the victim; the murderer may be incompetent due to age or medical condition; or the murder could be at the request of the victim (mercy killing). For whatever reason, the legislature did not include a slayer rule. In a constitutional framework investing all legislative powers in the Congress (Const. Art. 1., Sec. 1) or in a state’s legislature, why exactly do you think a federal or state judge should engraft the slayer rule onto the statute covering the revocation of wills, that is modify the statute so that it now includes a slayer rule? As an aside, if you think it is all right for the court to enact a slayer rule, how far should the court be able to go? For instance in Riggs, one of the plaintiffs was the murderer’s (a sixteen year old boy’s) mother. Should the mother have been entitled to inherit? Will that benefit the murderer? i.e. Don’t murderer’s benefit from having their property go to their children or parents? Some states slayer statutes don’t permit the slayer’s issue to inherit.

    Regarding the importance of separation of powers to our republican form of government, I commend to your reading federalist papers 47 through 51.

    David you state: “Please explain to me what is the Constitutional textual/originalist basis for saying that the so-called(!!!) first-order principle of “faithfulness to what they(!!!) understand their judicial role to be in our tri-branch system of government” somehow has the slightest claim to precedence over the common-law principle “that no man shall profit from his own wrong.” I will pick the latter over the former every time.”

    As I see it, you are asking the wrong question, the right question being the following:

    In our constitutional forms of governments (federal and state) in which the constitutions vest all legislative powers in the Congress or legislative branch, when Congress or a legislature enacts a statute, absent statutory authority, what right does the judiciary have to engraft an additional law onto the statute whether derived from the common law or any other body of law?

    The textual or originalist way of interpretation is conducive to a mind-set that is more likely to be vigilant or self-conscious about the limitations of judicial authority. Such a mind-set is especially important in the context of lifetime tenure.

    Holmes raises another important constitutional consideration. Under our Constitution, ex-post facto laws are prohibited. An ex post facto law is a law that is made effective retroactively. Adding a new law onto a statute for the purpose of deciding a case, is tantamount to an ex post facto law in that the law is enacted to apply to a case or controversy occurring before the statute was enacted.

  13. 13 David Glasner February 14, 2017 at 7:47 pm

    Scott, I agree that there is a semantic issue here about what constitutes making law. To add a third level of ambiguity, some people would say that the judge is not making law, he is discovering the law or declaring what the law already is.

    I agree with you that what is cruel and unusual is a matter of contemporary norms and not specific to what was understood to be cruel and unusual when the Constitution was ratified.

    Frank, A lower court judge will almost always defer to the precedent of a higher court when a litigant may appeal his decision to the higher court. The decision of the highest appellate court is no less binding than a statute. A lower court judge will not defer to the precedent of a higher court judge if he believes that he can argue persuasively that the decision of the higher court was flawed in some way and he will be able to convince other judges that his opinion has uncovered a flaw in earlier decision. A sufficiently good argument can overcome a precedent, but only by persuasion.

    ProfitMaximiser, I don’t accept that all judicial cases have a right answer and a left answer. So I don’t accept the basic premise of your argument. I also don’t believe that most lawyers lean to the left, whatever that would mean.

    jalposts, Well obviously judges have disagreed about when the language of a statute could interpreted in a way that does not correspond to the literal or the most obvious meaning of the statutory text. But the judge in Riggs didn’t arbitrarily reinterpret the language of the statute, he reinterpreted it to accord with a principle of common law. And Scalia himself acknowledges that a statute could be interpreted in accord with the common law principle of necessity even if doing so conflicted with the plain meaning of the text. The idea that the original meaning of the text should be given weight is not new, the idea that it must always govern a judge’s decision to the exclusion of all other factors (except for when they don’t) is a new ideological innovation. So I think that Scalia is more extreme than Holmes (but I admit that I am guessing because it has been at least 30 years since I read his book on the Common Law) and I know almost nothing about Easterbrook (except that he’s best friends with Posner). There are lots of specific circumstances that might affect how a judge would decide a particular case in which an heir murdered his testator. Those are precisely the sort of circumstances that judges would take into account in deciding cases in which the statutory rule might be circumscribed based on the strength of the competing claims of the litigants. If the legislature doesn’t like the interpretation of the judge, the legislature can still legislate and impose its will and overrule the judicial decision going forward.


  1. 1 The Incoherence and Bad Faith of Antonin Scalia’s Originalism | Uneasy Money Trackback on February 8, 2017 at 2:16 pm

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About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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