Academic journal article Albany Law Review

Activist or Automaton: The Institutional Need to Reach a Middle Ground in American Jurisprudence

Academic journal article Albany Law Review

Activist or Automaton: The Institutional Need to Reach a Middle Ground in American Jurisprudence

Article excerpt


The recent political season saw the idea of judicial activism regularly trotted out as an electioneering boogeyman at all levels of government--from local judicial races to the Presidency of the United States. (1) A common theme is that activist judges regularly overturn the will of the people by "legislating from the bench." Such rogue jurists twist the law in a manner that usurps the role of the legislature and thwarts the popular will in favor of the judges' personal views. On the other side, one sometimes hears equally strident claims that limiting the judiciary to literalist modes of statutory interpretation transforms judges into mere automatons, unwilling or unable to safeguard individual rights or apply the law in a reasonable manner to difficult factual situations. (2)

The purpose of this essay is to make a plea that we lay aside such strident rhetoric and approach the issue of the appropriate degree of judicial discretion from an institutional perspective. This essay suggests that neither extreme is a viable jurisprudential model from an institutional standpoint. Instead, the relative strengths and weaknesses of both our legislative and judicial institutions must be taken into account to find a middle ground with regard to judicial activism. Inherent in the idea of a middle ground is the need to accept that some degree of judicial activism is appropriate and necessary. The key difficulty, once this is agreed upon, is determining how to regulate judicial behavior to limit exercises of judicial activism to situations where it is institutionally beneficial. This essay maintains that internal constraints on judicial behavior can be used to effectively regulate judicial activism, but that this is only possible if steps can be taken to prevent politicizing the judiciary and to increase cohesion and consensus within the ranks of the judiciary itself. The theme for this symposium is issues facing the judiciary. This essay respectfully suggests that finding ways to foster judicial cohesion and consensus is one of the most important, and difficult, issues facing the judiciary today.


Before discussing the proper role for judicial activism, it is first necessary to examine the function of the legal system and law itself. The law gives us order and rules by which we regulate the actions of individuals and channel activity to promote societal goals. To achieve these ends, the law must be both respected and obeyed. That is, the "Rule of Law" must obtain. This concept dates back to Aristotle, who said that the law strives to be "reason unaffected by desire." (3) While the Rule of Law is the centerpiece of a democratic society, there is surprisingly little agreement about its exact nature or how to achieve it. (4) The Rule of Law, in theory, can merely refer to a system where legal rules are uniformly adhered to and equally applied to all citizens. (5) But in a democratic society, individual obedience to the law requires more than mere fear of punishment for violations. For the law to serve as an effective constraint on behavior, members of a society must respect the substance of the laws and the process by which they are created and enforced. (6) This condition of respect for, and obedience to, the law will be referred to as the existence of the Rule of Law in a society. (7)

A. Establishing the Rule of Law--Promoting the Goals of Equality, Uniformity and Predictability

In a common formulation, the Rule of Law is characterized by laws that are equally, uniformly and predictably applied. For purposes of this essay, it will be assumed that these goals are necessary, but not sufficient, elements of the Rule of Law. (8) These characteristics and their relevance to this discussion are briefly outlined in the remainder of this section.

The first requirement of the Rule of Law is equal treatment. Applying the law equally to all citizens demonstrates the fairness and impartiality of the legal system. …

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