The Role of the Federal Judge under the Constitution: Some Perspectives from the Ninth Circuit
O'Scannlain, Diarmuid F., Harvard Journal of Law & Public Policy
When considering the role of the federal judge under the Constitution, we should begin with the text of the Constitution itself.
I. THE NATURE OF THE JUDICIAL POWER
Article III, Section I provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (1) The text of the Constitution contains few other references to the "judicial Power." The term appears again in Article III, Section 2, which provides that "[t]he judicial Power shall extend to" particular "Cases" and "Controversies," (2) and in the Eleventh Amendment, which recognizes certain limits on the "judicial Power" because of sovereign immunity. (3) But that is all. The Constitution nowhere says what the "judicial Power" entails, or explains how it should be exercised.
Given the Constitution's brief treatment of the subject, one might infer that the Framers meant to leave the nature of the "judicial Power" "relatively open-ended." (4) Such an inference would be wrong. The "judicial Power" was not a term coined by the new Constitution, but rather one quite familiar to the founding generation. As Philip Hamburger explains in his recent book, Law and Judicial Duty, the "judicial Power" was originally understood to mean essentially what it had meant in England: the power of courts to decide cases "in accord with the law of the land." (5) That the "judicial Power" was left largely undefined in the new Constitution merely reflected that its meaning was already widely accepted and understood. (6)
The traditional conception of the "judicial Power" embodied important ideals. Because judges were to decide cases according to the law, they were not free to decide cases according to their personal values or individual notions of justice. The law alone was to supply the basis for decision, and it was the duty of judges to discover the preexisting rules contained therein. In Federalist No. 78, Alexander Hamilton defended the proposed Constitution on this very ground--that an independent judiciary would help ensure that "'nothing would be consulted [in the courts] but the constitution and the laws." (7) Of course, because judges would be applying the law, they would not be making it; the Framers wisely placed the power to make the laws in the political branches, which, unlike the judiciary, are directly accountable to the people.
The Framers thus envisioned that the "judicial Power" would be exercised in a neutral fashion. Precisely because judges would be, in the words of Hamilton, "bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them," there would be no "arbitrary discretion in the courts." (8) Ideally, whether a party prevailed would depend not on the whims of any particular judge, but on the content of the applicable law. In that sense, as Hamilton famously put it, the judiciary was to exercise "neither Force nor Will, but merely judgment." (9)
Chief Justice Roberts recently sought to capture the Framers' ideal of judging at his confirmation hearing by comparing judges to baseball umpires. He said that "[u]mpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role." (10) Chief Justice Roberts also said that, if confirmed, he would "remember that it's [his] job to call balls and strikes, and not to pitch or bat." (11)
Although the baseball analogy is a good one, there might be a better sports model for the Framers' ideal. A judge may be even more like a football referee than a baseball umpire. (12) The baseball analogy may imply too much rulemaking discretion on the part of the judge. It is largely accepted that baseball umpires may define their own strike zones. (13) One umpire might have a strike zone higher or lower than that of another, forcing pitchers and batters to adjust accordingly. …