Law and Judicial Duty
by Philip Hamburger
Harvard, 686 pages, $49.95

Recent events have brought the ordinarily neglected subject of judicial duty to the front pages. On the campaign trail, Barack Obama told us that in choosing judges”and especially justices of the Supreme Court““he would look for “somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

When asked her view of this empathic ideal during her confirmation hearings before the Senate judiciary committee, however, President Obama’s nominee to the Court, Judge Sonia Sotomayor, declined to embrace the president’s position. “I?.?.?.?wouldn’t approach the issue of judging in the way the president does,” she told the committee. “He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases, it’s the law.”

Sotomayor’s repudiation of the president’s empathy criterion raised eyebrows and not a few questions about her sincerity. But in truth her answer was a powerful tribute to the traditional American commitment to the rule of law. Even facing no serious threat to her confirmation, Sotomayor found it necessary to embrace an ideal of judging as old as the republic.

One prominent law professor, however, found Judge Sotomayor’s response “disgusting.” Michael Seidman asked, “How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First-year law students understand within a month that many areas of the law are open textured and indeterminate”that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments.” Ronald Dworkin likewise took on the notion of being “faithful to the law,” arguing that “the phrase means nothing, because there are so many contesting views about how to discover what the law is that ‘fidelity to law’ means fidelity to your own conception of law.” Surely many more in the academy were thinking the same thing.

It is a shame that no one on the judiciary committee asked Sotomayor the question posed by Seidman and Dworkin: When the law is not clear, what does it mean to say that “the job of a judge is to apply the law”? Without elaboration, the statement is more platitude than commitment. What could it mean? And it would have been interesting to ask Judge Sotomayor why a judge should not decide hard cases based on her own moral judgment.

As it happens, a recent book by Columbia Law School professor Philip Hamburger is devoted to just this subject. In Law and Judicial Duty , Hamburger provides by far the most comprehensive historical account of the ideal of judicial duty that undergirded our framers’ construction of the federal judiciary. Hamburger insists that judicial review, the power of courts to hold acts of the political branches unconstitutional, is not a distinct and discretionary power but simply an aspect of the more general judicial duty to decide cases in accordance with the law of the land. This explains why the power of judicial review is not mentioned in the text of the Constitution. A proper, historically grounded understanding of judicial duty, Hamburger argues, reveals “a judicial power both more authoritative and less dangerous than that which prevails today.”

Hamburger traces the development of modern conceptions of law to the realization, in Europe and especially Britain, that human reason rarely provided clear answers to moral questions and therefore that an attempt to ground law in divine will, or a search for abstract reason and justice, would inevitably lead to discord. As a result, “Europeans increasingly located the obligation of law in the authority of the lawmaker rather than the reason or justice of his laws.” The task of judges, then, was not to seek after elusive notions of justice and right reason but to enforce the law of the land. Natural law shifted in emphasis from moral content to legitimacy and authority, and increasingly to an understanding of authority based on the will of the people.

Judicial duty often led to the protection of the rights of unpopular minorities, but Hamburger stresses that such decisions”such as the nineteenth-century protection by North Carolina judges of manumitted slaves against retrospective legislation that would have re-enslaved them”was not a product of any empathy the judges felt toward the slaves. Quite the contrary. The judges “probably owned slaves” and “revealed no inclination to challenge slavery.” Rather, the judges accepted a duty to enforce the law, “notwithstanding the overwhelming weight of public sentiment” against the protected parties.

The judicial duty to enforce the law extended to enforcement of limits on local legislation, colonial legislation, and even exercises of royal prerogative, but it did not extend to judging the constitutionality of acts of Parliament, both because Parliament was understood to be the highest court in the land and because the British constitution was customary and so did not provide explicit limitations that were enforceable against Parliament in court. In America, however, legislatures lacked judicial authority and constitutions were written. “Thus, while working on the same principles as judges in England, the judges in most colonies ideally were free to decide the constitutionality of any American governmental act”executive, judicial, or legislative.”

The authority of judges is thus, Hamburger tells us, more firmly grounded in history than is commonly understood. But it is also more limited. The same understanding of judicial duty that required judges to invalidate acts of the king also required them to subordinate their own “fears and passions” to the dictates of laws made by others. Alexander Hamilton famously asserted in Federalist 78 that “the courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment , the consequence would equally be the substitution of their pleasure to that of the legislative body.”

As Hamburger demonstrates at length, this contrast between judgment and will was deeply ingrained in the traditional understanding of judicial duty and was presupposed by the framers of our Constitution.

The distinction was necessary to “segregate judicial duty from lawmaking power, to protect parties from injustice, and to keep judges within their sphere of independence and authority.” It was part of the duty of judges to resist the temptation to rule in accordance with their own predilections, however powerfully felt.

This ideal of dispassionate decision making in accordance with the law was never uncontroversial. Even in the centuries prior to our founding, according to Hamburger, “men with relatively academic perceptions of law and judicial duty” hoped that “judges would bring an academic-style rationality and justice to bear on English law” and “decide in accord with a broader range of law than that of the land.” The difficulty, though, is that this style of judging would constitute a return to the chaotic world of medieval divine- and natural-law theory.

Hamburger insists that traditional ideas both of judicial duty and of law “rested on a worldly skepticism as to whether men could reliably agree about reason and justice.” It is odd and scarcely realistic (despite the label of “legal realism,” which is accorded this alternative understanding) to think that the law is indeterminate but that reason and justice, let alone empathy, are less so.

A conception of judicial authority that is “above the law of the land” is therefore “dangerous” in much the same way that the king’s “claim to be the final judge of his prerogative,” or Parliament’s “own claim of absolute power, which is based on its status as the highest court in the realm,” were dangerous. Far better, according to Hamburger, is the more modest and quotidian view of judges as enforcers of the law rather than unchecked pursuers of rationality and justice.

As Hamburger tells the story, supporters and opponents of the U.S. Constitution during the ratification debates of the 1780s clashed on many significant issues, but “both sides shared the ideal of clarity and limiting judicial discretion.” The Anti-Federalists, to be sure, worried that the Constitution “was so vague as to leave discretion in federal judges,” but the Federalists “insisted that the Constitution was clear or at least as clear as human language permitted.” No one at the founding appeared to take the now popular academic view that the Constitution was deliberately framed in terms of heroic generalities precisely to give federal judges a wider scope for discretion.

Rather, as Hamburger emphasizes, when objective sources of constitutional interpretation run out, judges in the traditional vein do not seize on ambiguity to impress their own vision of good government on the nation. Instead they defer to legislative judgments and intervene only when constitutional principles are clear. Vagueness is not an excuse for judicial creativity but evidence that legislative action is within the legitimate range of constitutional meaning. Thus, in hard cases judges consult first the language of the Constitution, understood in light of its public meaning at the time of adoption. If there is a legitimate range of meaning, judges look to established practice and precedent to narrow its scope. But in the end, if constitutional meaning is uncertain, judges look to legislative judgments as the source of law rather than to their own preferences.

Our system has departed significantly from that ideal. “American judges,” Hamburger says, “have acquired a taste for power over law.” Presumably that is why the members of the judiciary committee questioned Judge Sotomayor so closely about her views of the judicial office. Empathy is a human virtue, just as rationality and justice are desirable features in the law. But to allow judges to decide cases in accordance with empathy, or to advance their own, necessarily disputed, notions of justice and rationality above the dictates of the law, would accord the judiciary a degree of discretion that is incompatible with an understanding of law based on popular democratic authority.

As Hamburger concludes this excellent volume: “Men will ever be discontent with law and ambitious for power, and judges will ever be vain enough to aspire to a justice above human law, but it is therefore all the more important for judges to recall the common law ideals of law and judicial duty.”

Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford, having recently stepped down from the U.S. Court of Appeals for the Tenth Circuit, where he was a federal judge.