Judges on Judging: Views from the Bench

HENRY J. FRIENDLY Senior Judge, United States Court of Appeals, Second Circuit

Should courts decide issues of social policy? If they do so, are some modifications of the adversary system desirable?

The courts must address themselves in some instances to issues of social policy, not because this is particularly desirable, but because often there is no feasible alternative. One is reminded of Sir Winston Churchill's remark that democracy is the worst form of government, except that no one has been able to think of a better one. ¹ On the other hand, if an ascertainable jural principle will decide a case in a way the court finds acceptable, ² it will do better not to support its decision on the basis of its conception of what is desirable social policy and particularly not on disputable social or economic data. When courts need to rely on such data, they should be careful to observe procedural fairness, both as a goal in its own right and as a tool toward getting information that is correct and complete. When the economic or social information is indeterminate, a court should refuse to use such data as a basis for its decision, although such a refusal should not foreclose a later attempt to convince the court when better information may be available.

Unlike legislatures, which may properly frame pragmatic rules having no relation to strict logic, ³ courts should render a principled decision that will apply to a great sweep of cases. Moreover, unlike legislatures, courts are generally confined to prohibiting or enforcing conduct, whether by the award of damages or, in the type of cases we are discussing, more frequently by injunction or declaratory judgment. ⁴ Legislatures, however, have many further options available to them, including taxation and subsidies. Also, the legislature can offer "sweeteners" in the form of increased benefits of a different sort that will justify the abolition of a rule which, however well conceived in its origin, has become unworkable. ⁵

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