Tuesday, March 21, 2006
Interesting article in the National Journal: In Praise Of Judicial Modesty, by Stuart Taylor:
The bottom line is that nonadherents understandably see originalism and living constitutionalism alike as smoke screens for imposing the justices' personal policy preferences. This is not healthy. How might we avoid the worst excesses of each approach?
The best answer is judicial modesty, in the sense of great hesitation to second-guess decisions by other branches of government. Embraced in general terms by then-Judges John Roberts and Samuel Alito during their Supreme Court confirmation hearings, the judicial-modesty approach is expounded more fully in a November 2005 Harvard Law Review article by Posner, a prolific and ideologically eclectic legal scholar. [Richard A. Posner, Foreward: A Political Court, 119 Harv. L. Rev. 31 (2005).
I struck similar themes in an op-ed in the National Law Journal, A Need for Judicial Humility:
Judicial humility is neither liberal nor conservative. It recognizes that judges and lawyers hold no monopoly on wisdom; in certain situations, institutions other than courts may be better positioned to resolve a particular issue. Judicial humility manifests itself in a number of ways, including a recognition that not all dumb laws are unconstitutional or need to be rewritten by judges. One mark of a humble judge is that he not infrequently implements laws he neither would have passed (as a legislator) nor enforced (as a bureaucrat) in the first place.
I expanded on these themes in Affirmative Refraction: Grutter v. Bollinger Through the Lens of The Case of the Speluncean Explorers, 21 Const. Comm. 65 (2004):
The Article introduces a novel jurisprudential approach to judicial decision-making what we refer to as a "jurisprudence of humility." Building on the recent work of ideologically diverse scholars, we argue that a jurisprudence of humility recognizes that judges and lawyers hold no monopoly on wisdom and that, in certain situations, institutions other than courts may be better positioned to resolve a particular issue. This jurisprudence of humility construct enables us to draw some rather surprising connections between The Case of the Speluncean Explorers and Grutter and span the gulf in the legal literature between statutory construction and constitutional interpretation.