An Interpretivist Judge and the Media

By Markman, Stephen J. | Harvard Journal of Law & Public Policy, Winter 2009 | Go to article overview

An Interpretivist Judge and the Media


Markman, Stephen J., Harvard Journal of Law & Public Policy


The debate over the role of the judiciary has been particularly intense in Michigan for the past decade. With four of the seven justices on the Michigan Supreme Court committed to a traditional jurisprudence--one that views the responsibility of the courts to say what the law "is" rather than what it "ought" to be (1)--there is no state judiciary in which this debate has been more directly engaged than in Michigan. This debate is reflected by majority opinions containing strong counter-responses to dissents in which issues of jurisprudence are central; (2) it is reflected by opinions according careful attention to a broad range of interpretative issues such as the merits of an "absurd results" rule, (3) the uses and abuses of legislative history, (4) the hazards of premature invocations of ambiguity, (5) and the propriety of "broad" and "narrow" interpretations of the law; (6) and it is also reflected by some of the most costly and contentious state judicial elections in the nation's history. (7)

What most obviously distinguishes the judicial debate within Michigan--and increasingly within other states--from that within the federal judiciary is the reality of periodic election. Although this reality properly should have no impact on judicial analysis or the substantive results of decisions, it does, as a practical matter, impose some greater obligation on state judges to identify their judicial principles as clearly as possible so that the people can understand their differing attitudes toward the exercise of the "judicial power." As it becomes increasingly evident to the people that judges are not fungible, and that differences among them are of considerable consequence to the public policies and legal cultures of their states, it becomes increasingly important that the elected judge communicates the values and philosophies underlying his decisions. After all, the people are entitled to know that Circuit Judge "Scalia" and District Judge "Breyer," for example, are competing for an open position on the state supreme court.

A second reality of the state judicial process is that the media plays a critical role in transmitting these communications from judges to the people. Based on my observations as a justice of the Michigan Supreme Court for the past nine years, this intermediary role poses a particular problem for judges committed to a traditional judicial philosophy, termed either "interpretivism," "textualism," or "originalism." (8) Not infrequently, the interpretivist majority of the Michigan Supreme Court has been characterized by the media as partisan, beholden to interests, or otherwise engaged in myriad forms of questionable decision making, simply because of its consistent commitment to read the law as it stands. (9) The interpretivist majority repeatedly refused to avail itself of opportunities to "improve" or to "enhance" the law, and has been determined to respect legislative compromises that may have produced laws that may be less rational and less consistent, and perhaps even in some ways less fair, than doubtlessly could have been achieved by judges unencumbered by the messiness of the democratic process. (10)

The result has been a court that has eschewed the role of "adult supervisor" for the state of Michigan, and has abided instead by the view that it is a function of the country's experiment in self-government that the people are entitled to enact laws that judges or justices might view as unwise or imprudent, so long as these do not contravene the constitutions of the United States or Michigan. The interpretivist majority has sought to avoid the eternal judicial temptation: to "improve" the law as the judge sees it and thereby to "strengthen" the work-product of the legislature by its own lights.

The following are several not-altogether-random thoughts on the media and interpretivism, recognizing that these are necessarily generalities and that a single description does not necessarily fit all. …

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