Although Article III of the United States Constitution begins by assigning “the judicial Power” to the Supreme Court, Philip Hamburger usefully draws attention instead to the term used in its second sentence, the judges’ “office.”   As in his recent tome, Law and Judicial Duty (Harvard, 2008), Hamburger asks us to reconsider contemporary notions of what law is and what judges do by recalling the way of thinking of the common-law judge, whom I think he rightly takes to be the model for the judicial office under the Constitution.  Against Oliver Wendell Holmes’ cynical definition of law as “prophecies of what the courts will do in fact,” and the seemingly tamer modern definition of courts as policy-makers, Hamburger restores the common-law judge’s self-understanding that he is bound to decide according to the law of the land.   Against his academic colleagues who write about the power of judicial review and analyze judges as “activist” or “restrained,” Hamburger argues that if modern judges think in terms of their duty rather than their power as they exercise their judicial office, they will be more inclined to protect legal rights and less inclined to invent them.  Both developments would enhance Americans’ liberty, Hamburger says, and I agree.

Hamburger begins his essay distinguishing “mere judgment” from “legislative will,” an important distinction found also in The Federalist, where the judiciary is said to be the branch “least dangerous to the political rights of the constitution” because, unlike the executive and legislative, respectively, they have “neither force nor will, but merely judgment.”  While Hamburger concentrates on the struggle in the soul of the judge against temptation to the sin of willfulness, Publius’ analysis is institutional: The different tasks of the different branches of government exercise different faculties and elicit different virtues in those who staff them.  What, then, is the specific business of judges that requires judgment?  To the common law mind, it was deciding particular cases and controversies according to law, or in other words, seeing how disputes can be settled and right or wrong determined in specific circumstances through the guidance of the rules and maxims—in other words, the reason—of the law.

Legal judgment is “passive,” to adopt Hamburger’s language, only because it comes after the deed and involves the determination of what is right according to law, not a plan to prevent the ill or enforce justice; that depends on the further operation of the law and the action of executive officials.  Nevertheless, the task of judgment is not trivial or mechanical, because while law is general, the circumstances of each particular case are unique, and besides, various laws seem to apply in any actual case.  Precedent is important to the common-law judge because precedents comprise the experience of previous courts settling similar disputes; it remains a task for judgment to determine which precedent governs the case at hand, just as it is to determine what laws are applicable.  Academic discourse deals in abstractions and hypotheticals; practical men and women decide about particulars, and this is true of judges as much as anyone else.

The exercise of sound judgment in disposing of a case distinguishes the more skillful judge from his ordinary companion.  This is recognized by the bar concerning trial judges, but it applies at the appellate level, too, and even in constitutional cases.  For example, in last year’s case of Snyder v. Phelps, the Supreme Court held that the First Amendment shielded members of the Westboro Baptist Church against a civil tort suit for inflicting emotional distress by picketing a military funeral to “publicize their message” that America is too tolerant of sin; the picketers stood on public land where they were directed by the police, did not block access to the church where the funeral was held, and behaved non-violently, thus qualifying for judicial protection in the eyes of the majority.  The lone dissenter, Justice Samuel Alito, did not challenge First Amendment doctrine per se, but did reject the Court’s characterization of the Westboro members’ activity as expression of opinion on a matter of public concern: In his judgment, which I find persuasive, their protest was a verbal assault and therefore, like slander or “fighting words,” ineligible for judicial solicitude.  The difference between the majority and the dissent was not a difference of principle, but a difference of judgment: Was the Westboro picket expression or assault?  Such differences are often controversial—this one probably is, and, to take another example, controversy certainly surrounded the difference a century ago between Justice Peckham and Justice Harlan as to whether the law limiting bakers’ hours in Lochner v. New York was an illegitimate attempt by the legislature to favor one class of citizens over another or a legitimate health regulation—but good judgment is more like an art than a science.  That the exercise of judgment can be criticized—that is, judged—is no argument against its necessity and in fact illustrates something about its inevitability and possibility in human affairs.

Discussion of particular cases makes sense of a couple peculiarities about American constitutional law that perplex those who do not understand the common-law background of its concept of judicial power.  In the first place, decisions about the constitutionality or unconstitutionality of a statute take place in the context of a specific case at law, often an ordinary civil suit between two persons or entities, or a case where an alleged crime is prosecuted; although some cases might be brought as vehicles to test the constitutionality of a statute, ordinarily the law itself is not on trial, but instead examination of its constitutionality is incidental to decision of a dispute between the parties.  Secondly, law develops over time not necessarily because judges are ideologically committed to a “living constitution” but because new cases arise in new circumstances.  Precisely because common-law judges understand law as applied in particular cases and reason from case to case analogically, not deductively from abstract propositions, they adjust the law as circumstances develop, sometimes imperceptibly, sometimes self-consciously.  Even Justice Sutherland, later the intellectual leader on the Court of opposition to unprecedented New Deal claims to federal power, acknowledged in Euclid v. Ambler Realty (1926) that municipal zoning laws that might have been seen in the previous century as an unconstitutional infringement on property rights made sense in light of modern economic and industrial circumstances.  Of course it is a matter of judgment whether and when circumstances have sufficiently altered as to change a rule of constitutional interpretation, but if that judgment is made in the context of a particular case where the outcome of the case depends upon its decision, and if its value as a precedent depends on its ability to withstand subsequent criticism, it is not a matter of legislative will to make a judgment call.

Now it is a point almost entirely overlooked in Hamburger’s essay how a written constitution differs from an unwritten common-law constitution of the sort that the English have long maintained.  John Marshall’s argument establishing constitutional review, like Alexander Hamilton’s argument in The Federalist anticipating it, depends not only on the ordinary judicial duty of sorting through apparent contradictions in the law invoked in the particular case at hand, but also on what Marshall called “the theory… essentially attached to a written constitution” designed to limit government by fundamental law of the people’s making.  Even purportedly fundamental rules of common law enunciated by courts in the making of judgments can be altered by statute, whereas rules established by decisions based upon the Constitution seem unassailable except by constitutional amendment and thus constrain popular sovereignty.

Since Marshall’s time, this difference in the consequence of judicial decision has encouraged thoughtful judges to be circumspect in making constitutional rulings, attentive to the discretion lodged in other branches of government and careful to limit their holdings to the cases before them.  That judges, even in doing their duty to decide particular cases according to law, should cast an eye on the larger consequences of their decision as a precedent does not make them legislators, though it does suggest that the distinction between saying what the law is in a particular case and what the law should be for future cases is a fragile one.  At the same time, connecting the justice of individual cases to the making of law is an important benefit of free government; even legislatures are moved to act when particular mischiefs are brought to their attention, when the consequences of bad policy can be seen in a specific instance and attached to an individual’s name.

For all the praise rightly due our common-law way of proceeding in constitutional cases, I am not confident that it can succeed without attention to first principles as well as judicial duty.  As it is difficult to walk in a straight line watching only one’s feet step by step, so I think judges find it impossible to develop a sound line of precedent without having given thought to “academic” traditions such as natural law and to philosophical reflection on justice.  The judicial oath of office, almost unchanged since 1789 and closely tracking the old common-law oath with its biblical reference, seems to me to capture the judicial office pretty well: The judge swears or affirms, “I will administer justice without respect to persons, and do equal right to the poor and to the rich, and… I will faithfully and impartially discharge and perform all the duties incumbent upon me… under the Constitution and laws of the United States. So help me God.”  The ambition to do “simple justice” without regard to all the rules and maxims of law and legal learning has led modern judges to do harm, both to those they mean to help and to constitutional liberty.  Hamburger’s emphasis on judicial office is a valuable corrective, especially as it restores to judges the duty of doing justice according to law.

James R. Stoner, Jr. is the Chairman of the Department of Political Science at Louisiana State University and is the author of Common-Law Liberty: Rethinking American Constitutionalism (Kansas, 2003) and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992)