Are Liberal Judges really ‘Judicial Activists’?

By Adam Cohen

“Judicial activism” is the number-one conservative talking point about the law these days. Liberal judges, the argument goes, make law, while conservative judges simply apply the law as it is written. It’s a phony claim. Conservative jurists are every bit as activist as liberal ones. But the critique is also wrong as an approach to the law. In fact, judges always have to interpret vague clauses and apply them to current facts – it’s what judging is all about. That point was eloquently made by retired Supreme Court justice David Souter, during a speech at Harvard’s 359th commencement earlier last month.

To hear conservatives tell it, America has long been under attack by liberal judges who use vague constitutional clauses to impose their views. This criticism took off in the 1950s and 1960s, when federal judges were an important driving force in dismantling racial segregation. Conservatives say that courts should defer to the decisions made by Congress, the President, and state and local officials – the democratically elected parts of government. When they interpret the Constitution, they should apply the plain words and the original intent of the Framers. If they did, conservatives insist, the right result would be obvious.

In his address at Harvard, Justice Souter explained why this cardboard account of the judge’s role “has only a tenuous connection to reality.” It is rarely the case, Souter pointed out, that a constitutional claim can be resolved by mechanically applying a rule. It’s not impossible: if a 21-year-old tried to run for the United States Senate, a judge could simply invoke the constitutional requirement that a Senator must be at least 30. But many constitutional guarantees, like the rights of due process and equal protection, were deliberately written to be open-ended and in need of interpretation.

Another problem with the mechanistic approach is that the Constitution contains many rights and duties that are in tension with each other. In 1971, the court considered the Pentagon Papers case, in which the government tried to block the New York Times and the Washington Post from printing classified documents about the Vietnam War. The court didn’t have one principle to apply – it had two. The First Amendment argued for allowing publication, while national security weighed against it. The Supreme Court, rightly, came out on the side of the newspapers. But it struck many people as a difficult case to decide. As Souter noted, “a lot of hard cases are hard because the Constitution gives no simple rule of decision for cases in which one of the values is truly at odds with another.”

Conservatives like to make judging sound easy and uncomplicated. At his confirmation hearings, Chief Justice John Roberts said he would act as an “umpire,” applying the rules rather than making them, and remembering that “it’s my job to call balls and strikes and not to pitch or bat.” It was a promise that did not last long past the Senate’s vote to confirm him. Chief Justice Roberts and the rest of the court’s five-member conservative majority have overturned congressional laws and second-guessed local elected officials as aggressively as any liberal judges. And they have been just as quick to rely on vague constitutional clauses.

In a 2007 case, the conservative majority overturned voluntary racial integration programs in Seattle and Louisville, Ky. Good idea or bad, these programs were adopted by local officials who had to answer to the voters. But the conservative Justices had no problem invoking the vague words of the Equal Protection Clauseto strike them down. Earlier this year, in the Citizens United campaign finance case, the court’s conservatives struck down a federal law that prohibited corporations from spending on federal elections. Once again, they relied on a vaguely worded constitutional guarantee. And in the process, they flouted the will of the people. After the ruling, a poll found that 80% of Americans opposed the ruling – 65% “strongly.” The decision was as anti-democratic as any liberal ruling conservatives have ever complained about.

A few years ago, a law professor at the University of Kentucky methodically examined the votes of the justices, applying objective standards. She found that the court’s conservatives were at least as activist as the liberals. When Kagan’s confirmation hearings begin later this month, there are likely to be more charges that she would be a judicial activist. Justice Souter’s Harvard address was a timely reminder of how meaningless such accusations really are. – Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.

Opposing view by Richard, a Yahoo! commentator: For a lawyer, this piece is pretty clumsily written and completely unconvincing. Yes, there are clauses in the Constitution that were deliberately left open-ended and require interpretation. That is not the point of contention for most conservatives, despite what Cohen claims. Their argument is that liberal activist judges deliberately extrapolate conclusions based on the most tortured logic and tenuous connection to what is actually written in the Constitution and, in most cases, they are correct. This isn’t surprising when liberal Supreme Court justices have publicly stated that the Constitution is “living document” and that case law should be used as a vehicle for social change. As for conservaties taking the same approach, it hardly seems likely (despite the unnamed University of Kentucky study) since conservatives specifically reject using the courts as tools for social engineering. Cohen’s feeble example of the Supreme Court overturning the McCain-Feingold so-called campaign finance reform doesn’t bother to consider the fact that the law violated the Constitional right to free speech. Of course, liberals are only interested in enforcing the provisions of the Constitution with which they agree.

The above article appeared here on Yahoo! on 9 June 2010 and is reproduced here for analysis of its message being equally applicable in the context of Malaysian laws. Reproduction of an opposing viewpoint meant to affirm Reading Law‘s stance of neutrality. Copyright in this article vests with TIME Magazine. For more viewpoints, visit the original article.

Mooting 101

Mooting, I admit, is not my forte. Based on the competitions the faculty organises, my friend and co-blogger, Alistaire, would be the maestro when it comes to the written submission. So, this entry is based on my experience taking it as a subject.

Essentially, mooting is an on-hands role play at the appellate level. You and your partner/teammate are to argue your case before a judge (the Moot Master/Mistress). Unlike mock trials, your arguements are based on facts that have already been established viz the mooting question. What usually happens is you are given a mooting question, either as a consequence of entering a mooting contest, or having to set for a mooting paper that particular semester. The question would normally be a judgment of a court at first instance that is, when the facts have already been pleaded and established, and the judge of that level would have already made a decision on such facts based on the law he or she would have thought correct. The reason why it is on appeal is obviously because one of the parties to the action think the judge wrong, but wrong on the law he or she would have applied, not the facts!

An abstract example would be a case where facts A, B and C exist, and facts B and C had been considered material when the judge made his conclusion on the laws applicable, conclusion X. One of the parties would beg that the conclusion should not have been conclusion X but conclusion Y. Or one of the parties might want to point out that fact A is indeed material as well. That is how mooting works.

A more applied example would be, say, in an action for defamation. Lets say that the defendant called the plaintiff something in the like of “Not only is he a liar, but he is so fat he could roll over the grand canyon and get stuck” and the judge awared for the plaintiff on both counts of calling him a liar (which was found false) and also that he is fat so he could get stuck in the grand canyon. The plantiff might appeal admitting the first fact (ie calling him a liar) but then might wish to point out that the second fact is immaterial because insults are not to be taken as defamatory. Defamation is essentially about postulating a fact knowingly believing it to be false, and spreading such a fact.

In a moot, you argue based on the law to be applied. A simple dispute would be over, say, an exclusion clause, and whether it would be applicable in the dispute. The fact that the defendant had caused damage to the plantiff is quite plain, and neither party would dispute it, but the defendant would wish to rely on such a clause to absolve all and sundry his liability towards the plaintiff, while the plaintiff for obvious reasons would wish to argue that such a clause would not be applicable.

Having dispensed with that, there are a few salient points to consider when you take part in a moot. They are as follows.

1. Dress appropriately. A typical black suit and tie for the lawyer, i.e. the works, if you will, and black sparkly shoes to boot. Looking smart in the courtroom makes a difference since everyone likes a looker.

2. Mind your courtroom manner! Mooting isn’t a debate. You don’t shout your opponent down, you make humble submissions before a judge. “Being officers of the court, you are basically the judge’s slaves” is what one UiTM lecturer once said to bring the point home. Nicities such as “May it please this Court…”, “Much obliged” and so on make for good presentation marks on the scoreboard. 

3. Use correct pronounciation. The case of Donoghue v Stevenson [1932] AC 562 for example, is pronounced “The case of Donoghue and (never ever “versus”!) Stevenson, reported in the year nineteen thirty two in Appeal Cases at page five hundred and sixty two”. It may be a bit of a mouthful, but that is how things are. If its a criminal case, say like PP v Ibrahim it would be pronounced “Public prosecutor against Ibrahim”. If the year is in rounded brackets as opposed to square brackets, like (1932) instead of [1932], you substitute the phase “reported in the year…” with “decided in the year…”.

4. Have a good grasp of the legal principles involved. You don’t have to remember facts of authorities in detail, but do understand the principles underlying them. This is useful when the judge asks you questions (and believe me he will) that might attempt to trick you. For example, the simple principle that the tort of nuisance applies only in relation to damage to land use and not to injuries to the person once saved my friend Alistaire when the judge asked him whether, if he won (he was representing the plaintiff), damages could be awarded to his client based on the fact that the client had sustained personal injuries. 

5. And last but not least, be confidant! The courtroom is sort of like a tennis feild, and you are playing tennis with the other side with the judge as the referee. Never be afraid to postulate your take on the issue, that is, nicely, of course! Confidence is not arrogance, and know where the line is drawn between the two. If you keep this and what has been said above in your brain at all times, most likely you would be coming out of the court smelling like a rose, Ally McBeal style!

See With Your Mind, Read Between the Lines

In an ideal world, you can expect all relevant details and information to be disclosed to you. Be it from your client, employer or the exam papers. Also, in an ideal world, you can expect the cases and problems you need to address are all clear cut and purely academic. But in that ideal world, wouldn’t it be boring? As a Law student, a skill which you should acquire in 3-4 years of legal education and training is this: reading between the lines.

Reading between the lines?

Imagine you, as a client, talking to your lawyer. Would you actually disclosed every detail? Example you’re asking for divorce. Will you tell what on earth were you doing with the other person – who is not your spouse – in your birthday suit at 3 am in the morning at a cheap hotel? Maybe your account is not meant to conceal things. Another probability is that you would forget certain details. Perhaps you were drugged before you were dragged to the hotel.

Sometimes, the things that aren’t explicitly mentioned are critical to your case. These small insignificant details, you thought, would have no effect. Sorry to say, in many a times, your overlooking of these information could result in your own loss.

Let’s be practical on the subject, shall we?

Case law. You are asked to read Donoghue v Stevenson or Re Webster. Next tutorial class, you are to present it and submit a report. Alternatively, you were assigned Stephen Kalong Ningkan and are asked to prepare a case brief/report. What do you do? How can you tell an argument was from the respondent and the other from the appellant?

If you’ve opened up a case law, you would know that the details therein are: case name, keywords, summary, judgment. Yes, the lawyers representing each party are named as well. But you do not have ‘arguments by the plaintiff’ or ‘defendant’s submission’. Yes, again, some judges highlight who said what. But what if they did not?

Here’s where your ‘reading between the lines’ skill comes in.

Another illustration, a statute. A particular clause says so-so-and-so are prohibited? But does it also mean that not-so-and-so are all permitted? In your first year, you would be exposed to the rules of interpretation (i.e. Golden rule, mischief rule, literal rule, hybrid, etc). But the apply these you still need to know: what is this person not telling me but can be deduced – not assumed – from this scenario?

Why not ‘assumed’? A fatal mistake many do over and over again is defending their case based on pure assumption. When you deduce, you have a concrete evidence based on the scenario. When you guess, you are shooting in the dark. Personally, I don’t want my lawyer to d the later. It is a sure way to fail.

Another thing you should consider are the circumstances surrounding the problem. Remember, honour killing may be illegal and inhumane in some parts of the world. In a different part, it may be the best option. In cases such as defamation, you cannot assume that the parties involved grew up and are trained in England or Kuala Lumpur. Your clients can be from Ulu Kapit and Ulu Baram for all we know in real life. These circumstantial informations should be deduced and be used.

Now, let’s talk exam papers, shall we?

In the Finals, the information provided in the question paper are all relevant and meant to show something. Use it, manipulate it but do not resort to assumption unless you can deduce. Deduce, again, a la Sherlock Holmes. 😉 No one said the Legal Studies/Law programme was an easy, trouble free programme. :-p

Did you know that extra marks are allocated if you can detect the ‘hidden’ issues? Consult your lecturer or tutor for more details. Each subject has different approaches.

When you’re in UiTM, you will do the Literature Appreciation subject in your 4th Semester. Use this opportunity to be critical of literature. It’s a good foundation to reading between the lines.