“My job is to apply the law.”

This post continues the thread about the Constitution and the idea of better understanding the intended role of judges and the judicial branch of government.

Thomas Sowell writing about Supreme Court Justice Oliver Wendell Holmes in Dismantling America (p. 286):

Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society.  He had a very clear sense of what the role of a judge was — and wasn’t.

Justice Holmes saw his job to be “to see that the game is played according to the rules whether I like them or not.”

That was because the law existed for the citizens, not for lawyers and judges, and the citizens had to know what the rules were, in order to obey them.

Legislators existed to change the law.

Holmes wrote that he did not “think it desirable that the judges should undertake to renovate the law.”  If the law needed changing, that was what the democratic process was for.  Indeed, that was what the separation of powers in legislative, executive and judicial branches by the Constitution of the United States was for.

Another judge said to Holmes while riding in a carriage: “Do justice, sir.  Do justice.”

Holmes had the carriage stopped.  “That is not my job,” he said.  “My job is to apply the law.”

Wise words.

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13 thoughts on ““My job is to apply the law.”

  1. Except, traditionally in western law, we have given judges the ability to apply justice where the law fails — which is, by the way, where we get common law.

    Holmes was being pedantic. Generally correct for a Supreme Court justice, specifically incorrect especially for cases of first impression.

    And consider what if Holmes had been correct: Where would we get any claim to a right of privacy?

    • “…where the law fails”

      Whose judgment do we use when to determine when the law fails? That sounds arbitrary to me and it sounds like granting the judicial branch the powers of the legislature.

      If there are concerns about privacy that aren’t already covered in existing law or the Constitution, why not address those with amendments to Constitution or through the legislative process?

      • We use the judge’s judgement. It’s a well-established system in western law, going back at least 800 years, and probably farther.

        For example, the law doesn’t say anything about who owns the calf when a cow not known to be pregnant gives birth. Had the seller known, he’d have insisted on a different deal. A miller has the axle to his grinding wheel break at the peak of milling, so he sends it out for repair. The repairman doesn’t get to it right away. The law is silent on whether the repairman is liable for the lost income the miller suffers.

        These are famous cases that made common law. The judges do their best. If they goof, it’s corrected later.

        Judges in criminal cases traditionally had the latitude to temper sentences for good and compelling reasons — subject to review, of course.

        There are lots of cases where we trust judges to do justice rather than just carry out “the law.” Our culture, our government, most of our everyday activities, turn on this justice.

        I think Holmes was being cynical and sarcastic, or grossly in error.

        • I agree that we have let judges legislate.

          But, was that intended when the legislative and judicial branches were separated in the Constitution? If you believe so, what evidence do you have of this?

        • It’s called “common law.” Common law is judge-made law. The debates were how to change some parts of common law under the new nation — Mason and Jefferson wrote a law making blasphemy a crime, in one extreme example. Under common law, blasphemy was accused by the local preacher, who could act as prosecutor if he chose, and who was also technically the adviser to the judge on just what blasphemy was.

          By making blasphemy part of the Virginia criminal code instead, Jefferson wrote, they had effectively eliminated the offense from the books, since no prosecutor would bother with such cases. Jefferson was right.

          Judges never have the luxury of functioning completely where a legislature has laid out a procedure and standards for crime. And, prior to about 1850, the great judges were those who used their wiles to make law — Solomon, Coke, etc.

          Yes, when the branches of government were separated, the founders intended that judge-made law would continue to rule, in contracts and in torts especially. It’s not until the 20th century that we start getting things like the Uniform Commercial Code to affect contract law, and for the most part it simply restates the Restatement of Contracts for deals generally unanticipated in 1750 (credit card deals, electronic transfers, serious travel and long-distance shipping by land).

          Wherever did you get the idea that the founders intended anything different? Of course they intended judges to continue to rule in commercial deals.

        • I believe common law emerges from customs, not judges. Judges apply the customs, they don’t make them.

          But, we’re not talking about common law here, we’re talking questions of Constitutionality.

          I doubt Holmes was being cynical. And other judges have held similar views. Current Justices Thomas, Roberts and Alito I believe would tend to agree with his sentiment, especially in regards to questions of Constitutionality, as have other judges throughout history.

          There are also judges now and in the past that agree with your view. So, determining which judges agrees with who won’t settle much.

          More specifically, evidence I would be looking for to support the notion that judges have wide interpretative powers over the Constitution would be specific language in the Constitution or Federalist papers.

        • I believe common law emerges from customs, not judges. Judges apply the customs, they don’t make them.

          You’re entitled to religious beliefs, but this is an issue of history. Common law is judge-made law, not custom — for the last millennium, anyway.

          But, we’re not talking about common law here, we’re talking questions of Constitutionality.

          Two different things. You asked where we allow judges more room. Common law is that place. Injustice in criminal law is another place.

          I doubt Holmes was being cynical. And other judges have held similar views. Current Justices Thomas, Roberts and Alito I believe would tend to agree with his sentiment, especially in regards to questions of Constitutionality, as have other judges throughout history.

          Thomas had no difficulty making new law in Bush v. Gore. He had no difficulty in trampling tradition and the Constitution to create a new law saying that the statute of limitations on discrimination runs “secretly” from the point of infraction, rather than from the point of discovery.

          You’re trying to force a modern misconception of law onto past history. I think you’d benefit from studying more of the history of the law — more than from trying to find quotes from a few founders that tangentially relate to modern affairs, and often to the affairs they were discussing then.

          I also wonder: You claim Holmes was right and correct in the one sentence you cite from him.

          I’ll wager you don’t think him correct in this statement:

          “I like paying taxes. With them I buy civilization.”

          Holmes agreed with Madison that government should build public works, and do much else with taxes.

          And then, of course, there is Holmes infamous line from the case allowing sterilization of those “ruled” to be mentally retarded: “Three generations of imbeciles is enough.” Even if one agrees that stupidity should stop sometime, the gross injustice worked by that case, and by that decision, should make us circumspect about adopting one liners from the past without knowing the history.

          There are also judges now and in the past that agree with your view. So, determining which judges agrees with who won’t settle much.

          Which is why I suggest you look at the entire expanse of the history of the law we depend on every day, which appear to wish away. I don’t think you understand the depth or width of the deluge you wish for.

          More specifically, evidence I would be looking for to support the notion that judges have wide interpretative powers over the Constitution would be specific language in the Constitution or Federalist papers.

        • Ed – Thanks again for the comments.

          If you have some time, please watch the video lecture at this site: http://www.fff.org/comment/com1010c.asp

          The way you view law is conventional, no doubt. But that doesn’t necessarily make it correct.

          Your comment has several red herring fallacies, a couple of ad hominem fallacies and as near as I can tell didn’t answer the primary question I have:

          Is there evidence in the Federalist Papers or the Constitution that the authors of the Constitution intended to give judges broad interpretive powers over the Constitution?

        • I wonder what in the world you think argument ad hominem is.

          Nothing in the Federalist nor in the Constitution suggests that any of the three authors thought that courts would be more restricted from use of common sense and new argument than courts of the day. Here’s a searchable copy of the Federalist:
          http://www.gutenberg.org/cache/epub/18/pg18.html
          Where do you base a claim the judges are restricted to the four corners of the document?

          Does anything in the Antifederalist suggest otherwise? (You talk about red herrings, then throw one yourself — I’ll see it and raise you a codfish.)

  2. “You’re trying to force a modern misconception of law onto past history. I think you’d benefit from studying more of the history of the law — more than from trying to find quotes from a few founders that tangentially relate to modern affairs, and often to the affairs they were discussing then.”

    I consider this to be an ad hominem fallacy. Your focus in this paragraph is on me and does not validate or invalidate the discussion at hand.

  3. There is nothing about you in there — it is all your argument. You are not your argument. I said nothing about you personally.

    Thanks for clarifying.

  4. “You’re trying to force a modern misconception of law”

    This is your perception of what I’m trying to do. It may be correct or not. But it does not address where law actually comes from or how judges should interpret the Constitution.

    Ad hominem may not be the correct form, perhaps this is a red herring too.

    And,I am prone to throwing out fallacious reasoning on occasion as well. I try not to, but it’s a tough habit to break. I appreciate it when folks call me out on it so we can get back to the discussion.

  5. Pingback: Darwinian Common Law « Our Dinner Table

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