Professorial Malpractice

In his opinion piece in today’s Ledger, Rutgers Professor Frank Askin demonstrates why so many lawyers make horrible judges: they’re trained – in constitutional law, no less – by people without the slightest hint of the appropriate judicial role. He then proves this point by misciting Oliver Wendell Holmes, creating an impression wholly at odds with that august jurist’s actual views.

Justice Holmes did, indeed, write that "the life of the law has not been logic, but experience", but that quote relates to, and appears in an essay called, "The Common Law". It has nothing whatsoever to do with the judicial role in constitutional adjudication. Indeed, Holmes was famous, as one source puts it, for "his support of the doctrine of ‘judicial restraint’ which urged judges to avoid letting their personal opinions affect their decisions."

Common law courts make policy, but the Supreme Court is not a common law court; it sits not to adjudicate garden variety cases dealing with property, contracts, or torts. Virtually its entire caseload involves interpreting either statutes of the Constitution. In both cases, either the Legislature (state or federal) or the people have already made policy. The Court simply determines what that policy is, and whether that of the Legislature squares with that established by the people.

Obviously, Professor Askin’s position – that personal (presumably political) views, or a judge’s ethnic identity, sex, or experiences, should influence her constitutional interpretation – directly contradicts Holmes’ devotion to "judicial restraint". Indeed, Askin, like most of the Left, implies that adjudication represents nothing more than politics by another means. Holmes would be horrified.

A more appropriate Holmes tale involves his discussion with Learned Hand. As they parted company, Hand bid Holmes, "Goodbye, sir. Do justice!" Holmes responded tartly: "That is not my job. It is my job to apply the law."

Precisely.

Men like Askin, and women like Sotomayor, who fail to understand that simple definition of the judicial role, should neither teach constitutional law nor be entrusted to apply it.

New Jersey represents the baleful example of what happens when folks trained by the likes of Askin and his ilk actually get their way. Our State Supreme Court is a national laughing stock, widely regarded as the undisputed champion: worst state Supreme Court in the country. During 2000, Florida made a play for that distinction, when its state courts tried to hand the Presidency of the United States to Al Gore. Later, Nevada's Court presented a formidible challenge, declaring its own constitution unconstitutional, a truly cute trick. But the unparalleled record of judicial malpractice by the NJ Supreme Court puts it in a league all by itself.

Of course, the mother of all indefensible decisions is Abbott v. Burke and its predecessor, Robinson v. Cahill, in which the Court transformed an innocuous provision relating to a legislative obligation "... to provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years" into an obligation to fund certain, judicially favored school districts at obscene levels, to build them educational palaces, and to provide pre-school to three year-olds. Obviously, the constitutional language cannot support that tortured reading, and the Court made no pretense of supporting its "interpretation"of that language with evidence of the Framers’ – or the people’s – intentions. The decision represented nothing more than an exercise of raw judicial power, and, more than any other factor, created our present budgetary crisis.

Contributing mightily to that budget crisis, and to both the rape of the environment and the explosion of property taxes, are the judicial ukases included in the numerous Mount Laurel cases. (Mis)interpreting another innocent-looking constitutional provision entitling municipalities to zone, the Court read into that sentence an obligation to do so only consistently with the judicially-sanctioned "public good" which, the Court concluded, required that government go into the housing business. Again, there exists not a shred of evidence that the folks who wrote the constitution even remotely considered endowing the Court with that sort of power. Only lawyers trained in Askinesque classrooms would be arrogant enough to wield their power in such a fashion.

Our Court routinely ignores the text and history of statutes and of the constitution in order to arrive at what the "Justices" believe to be desirable policy results. They blessed a clearly unconstitutional redistricting scheme based upon their notion that it better served minorities. They permitted the infamous Torricelli switch, despite unequivocal statutory language prohibiting same, because they found the language inconvenient. They declared that the Boy Scouts lacked the power to choose their own Scout Masters, only to be slapped down by the SCOTUS. They invalidated a legislatively adopted parental notification law for abortions on minors on wholly spurious grounds. Indeed, NJ is one of the few states in which the taxpayers fund elective abortions, not because they want to, but because our black robed masters demanded it.

Of course, the Askin’s of the world are delighted by this state of affairs, because the folks imposing the policy agree with their political views. But imagine the outrage if conservatives did the same thing. Indeed, in any constitutional law class, the same professor who preaches the blessings of "substantive due process" as respects abortion reacts with horror at "substantive due process" respecting property rights and contracts. When courts, as exemplified by Lochner, invalidated legislation which restricted property rights, the left (properly) squealed. But they applaud when courts employ precisely the same rationale to invalidate abortion restrictions, or to impose gay marriage upon an unwilling populace.

Judges exist not, as Judge Sotomayor suggests, to "make policy", but to apply that already made by the Legislature or by the people. They exist not to "do justice", let alone as their own experiences define that term, but to apply the law.

We have a word for those who wish to make policy: "politician". An honorable term, but one wholly at odds with the judicial role.

We also have a term for people who quote Holmes’ aphorism as supportive of a non-interpretivist constitutional jurisprudence: dishonest.