Judges as Honest Agents

By Easterbrook, Frank H. | Harvard Journal of Law & Public Policy, Summer 2010 | Go to article overview

Judges as Honest Agents


Easterbrook, Frank H., Harvard Journal of Law & Public Policy


I'm here to defend the proposition that, when implementing statutes, judges should be honest agents of the enacting legislature.

The honest-agent part is not controversial. It isn't just that Hamilton said in The Federalist that judges would play this role. (1) It is that faithful application of statutes is part of our heritage from the United Kingdom, and thus what the phrase "the judicial Power" in Article III means.

Constitutional structure tells us the same thing. The President must take care that the laws be faithfully executed. Judges, who are not elected, cannot have a power to depart from faithful implementation, when the elected officials are lashed to the statute. It would be insane to give revisionary powers to people you can't turn out of office. The trade in Article III is simple: Judges get tenure in exchange for promising to carry out federal laws. Tenure is designed to make judges more faithful to statutes, rather than to liberate them from statutes. It liberates them from today's public opinion, so that they can be faithful to yesterday's rules (whether in the Constitution or in the United States Code).

So the real question at hand is the second part of the proposition: must the judge be faithful to the enacting legislature or instead to the sitting one, as Professor Eskridge argues? (2) Or perhaps should the judge be more faithful to later-enacted statutes, and treat earlier ones as if they were part of the common rather than the statutory law? That's the position Judge Calabresi took in 1982, (3) although he spoke as a professor and perhaps has come to see matters otherwise after joining the bench.

I think that the judge must carry out the policy created by the enacting Congress, even if later laws are in tension with the older ones, and even if the judge is convinced that the sitting Congress would amend the law were it to visit the subject anew. I have three principal reasons. (4)

First, our Constitution makes certain procedures essential to enacting law. Congress must act by majority vote. Both Houses must enact the same text during the same Congress. And the President must give assent unless two-thirds of each House votes to override a veto. The terms of political officials are limited to two, four, or six years, after which they must face the people. A judge cannot conceive of legislators as homunculi who have perpetual tenure and always can revise their work. Only what officials do during their terms counts as law--and then only to the extent that what they do meets the forms of bicameral and presidential agreement. An opinion poll of legislators is not law, because it does not satisfy the forms, even if the judge is sure that the poll reflects what legislators favor. And thus only the actual work of an actual enacting legislature counts. That legislators serving at different times produce different rules is an attribute of a democratic system, not an objection to it or a reason for judges to become legal entrepreneurs.

The Supreme Court made this point in West Virginia University Hospitals, Inc. v. Casey. (5) Plaintiffs won a civil rights suit and asked the court to award them not only attorneys' fees, but also the fees they paid to expert witnesses. Although the statute, enacted in 1871, covers only attorneys' fees, more recent statutes allow the award of expert fees too. The winner expressed confidence that, if Congress considered the issue either in 1871 or today, it would include expert fees. But the Justices thought the exercise illegitimate--not wrong in the sense that the litigant had misunderstood the likely behavior of the legislative branch, but wrong in the sense that judges are not authorized to engage in the exercise. Here's what the Court said:

   This argument profoundly mistakes our role. Where a statutory term
   presented to us for the first time is ambiguous, we construe it to
   contain that permissible meaning which fits most logically and
   comfortably into the body of both previously and subsequently
   enacted law. … 

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