Public law: Judges v Legislators

It wasn't until my jurisprudence class this year that I realized that the criticism of 'activist judges' is not actually as accurate as the term may suggest. At the Supreme Court level, judges tend to be more politicians and fewer jurists, as their decision creates a binding precedent which the lower courts are bound to follow. If the legislature deems the decision wrong, they have the ability to change the law, but the legislature process and multiple interests may make that nearly impossible, as we know.

At the lower level courts, judges, I'll argue, are actually more representative than legislators, as they see regular people every single day. Decisions made in courts directly affect the lives of the individuals and do not require the implementation of the bureaucracy. A judge in a lower court is bound under the law and the arguments set forth by the two sides.

I've been reading a text on piracy from the US Naval War College and there is a great summary on how our founding fathers left a lot of leverage and digression to the lower courts and knew that the supreme court was limited by the executive's willingness or unwillingness to implement a decision - as FDR illustrated, a decision out-with the agreement of the president may lead to packing the court by diluting the majority which ruled against the White House and Congress.

The counter argument is that legislators are more democratically accountable as they are elected by the people they represent, whereas judges are removed from the electoral process. Though in the many American states the Missouri Plan for selecting judges is used, whereby a judge is nominated by a judicial commission, selected by the state’s governor and confirmed by the state senate, then held up for a retention election every few years to ask the people if the judge is performing the duties charged under the constitution and laws of the state.

Prima facie, it is difficult to counter the argument that perhaps judges could be ‘closer’ to the people than legislators. Legislators are elected by their constituents for a prescribed term. Whereas judges are unelected, appointed for life tenure and they do not respond to the people in any direct way. The challenge to a representative democracy is that unelected individuals can overturn the decisions of an elected body, and therefore challenge the will of the people.

Legislators will often not contemplate the constitutionality of a proposed bill, but discuss the political reasoning or popular logic in the arguments debated in the committee rooms and on the floor of the assembly. At the turn of the 21^st Century, many members of the US Congress voted for campaign finance reform even though it was thought to violate the First Amendment of the US Constitution. The Supreme Court was almost set up for political failure as the decision was to (a) uphold the will of Congress and thereby the people or (b) uphold the validity of the US Constitution and the social contract which congress and the people are bound. The Court held the latter and was criticised for crafting ‘bench made law’ and also for ‘judicial activism’ and undermining the people’s elected representatives.

The British Parliament is supreme and therefore can do ‘whatever the hell it wants, whenever it wants’. The British Supreme Court (formerly the Appellate Committee of the House of Lords or simply, the House of Lords), cannot strike down an Act of Parliament for being unconstitutional, as the supremacy of parliament means the legislature and therefore the will of the people is absolute and cannot be undermined by the constitution and the supreme court, both of which are granted authority from parliament. The concept of judicial review is different in the America, as the US Constitution is regarded as ‘higher law’ and all other law is subordinate. Acts of Congress, case law, and regulations would all be subordinate to the US Constitution and therefore classified as ‘normal law’ or ‘ordinary law’. The US Constitution is the supreme law of the land. A constitution usually seeks to define the relationship the institutions of government, the relationship between the individual and the state, and provide limits on the power of the state, along with setting forth the goals and principles of the state, usually found within the preamble.

Judicial review by its nature undermines popular will, as all or part of a statute, passed by the legislature and given the force of law by the executive, can be declared ultra vires by a court, and struck down as unconstitutional. However, popular will in legislative terms is the support of the majority. This means that a minority in civil society may be largely unrepresented.

In Brown v Board of Education of Topeka (1954) 347 US 483, the US Supreme Court overturned their earlier decision of Plessy v Fergusson (1896) 163 US 537, which had upheld the post-Reconstruction (1877) doctrine of ‘separate, but equal’ enshrined in ‘Jim Crow’ laws, such as rules segregating public schools (Cumming v Richmond County Board of Education (1899) 175 US 528) in the American South as being within the ambit of the Constitution. The Court quickly followed the Brown precedent by holding segregation based on race within public spaces to be a violation of the Equal Protection Clause of the 14^th Amendment to the US Constitution. Many US States tried to argue the 14^th Amendment only applied to Federal and not individual state citizenship (the Slaughter-House Cases (1873) 83 US 36). As Brown illustrates, nothing happened for the next fourteen years in regards to segregation, mainly due to a violent backlash from Southern states who claimed the Court was circumventing the democratic authority of the legislature. It was the legislatively crafted Civil Rights Act 1964 which finally brought an end to racial discrimination.

The function of the democratic accountability in the courts is to interpret the constitution in respect of popular opinion of the people. They filter public opinion through their decisions to interpret the constitution in consistency with public opinion. Judges interact with the public on such a regular basis that the knowledge of popular opinion and arguments presented is known and able to be effectuated through the decisions and judgements of the court. This school of thought is embodied by the American Realist movement, which began with US Supreme Court Justice Oliver Wendell Holmes in the early 20^th Century. 

The ‘Case of the Speluncean Explorers’

The ‘Case of the Speluncean Explorers’ [See: (1949) 62 Harv. L. Rev. 616], is a hypothetical case, written by Harvard law professor, Lon Fuller (1902-1978). The case contains five judgements, each employing a different method of legal reasoning – formalist, positivist, indeterminate, realist and idealist – in rationalizing and justifying their decision. The challenge for the court is one of life and death, as the case involves explorers trapped in a cave, a massive rescue attempt (which results in ten rescuers perishing), and four of the trapped men killing and eating the fifth in order to survive. The criminal code of the society reads, “Whoever shall wilfully take the life of another shall be punished by death”. The justices debated negating factors like: self-defence, quasi-contract theory, necessity and popular opinion, along with the purpose of the criminal law and notions of morality. Prima facia, this case appears void of a ratio decidendi as two of the justices were in the affirmative, one abstained, and the last two opted to over-turn the sentence rendered in the lower court.

Factually, the Speluncean Case is similar to the Chilean miners who have been trapped for nearly two and a half months. Legally, the Speluncean Explorers case is akin to the American cases of U.S. v Holmes (1842), the case of Donner Party and Packer v The People of the State of Colorado (1885), along with the English case of R v Dudley and Stephens (1884). All three reported cases considered the question of necessity. Hume, i, 54-55, defined necessity as “that which arises from the pressure of extreme want: I mean where the person has done something which serves to the support of nature for the time. As might be expected, lawyers have differed about the justice of punishing such a case: some affirming that the notion of dole is excluded in these circumstance of personal distress, or at least that they afford a good plea for a mitigation of the ordinary pains; while others deny that such considerations are at all available in law.” Professor Lon Fuller choice a very clever topic for his case, as it concerned topics which ‘shock the conscience’ – to quote one well known juris.

United States v Holmes (1842) 1 Wallace Junior 1; 26 Fed. Cas. 360 The U.S.S. William Brown hit an iceberg in the frigid waters of the north Atlantic. Survivors, including crewmember Alexander William Holmes, who believed the lifeboat was overloaded and destine to sink in the choppy waters, proposed the idea that a few of the survivors sacrifice their lives in order for a few to live, rather than all onboard perish. Lots were drawn and 14 passengers were tossed into the frigid ocean waters, resulting ultimately in their deaths. In Philadelphia, Holmes was charged with murder, though a grand jury reduced the charges to manslaughter. Holmes pled the defence of necessity, but was convicted on all counts.

A US Military investigation into the Donner Party yielded evidence of possible cannibalism, but no grand jury was assembled. In 2010, biological anthropologists impugned the popular theory of cannibalism, though many of the 46 survivors, out of 87 pioneers, who had gotten trapped in a terrible series of storms (1846-1847) in the Sierra Nevada Mountains, admitted to partaking in cannibalism. A sector of the Donner Party, known as Forlorn Hope (consisting of 15 members) became lost in the snow and mountains and was dying of starvation. Patrick Dolan, having no family or friends within the expedition, drew the short straw and was killed and eaten.

Packer v The People (1885) 8 Colo. 361; 8 Pac. 564 Alfred Packer was one of a small group of explorers who opted to cross dangerous mountain pass in late autumn 1874 in the Territory of Colorado. The expedition was caught in a snow storm and it was revealed that Packer ate portions of the five men for survival. Packer claimed a pack had been formed and dices cast, one man was shot and eaten, as the others died of hypothermia, they too were eaten. When it came down to Packer and another, Packer opted to pre-emptively kill the other man in self-defence. See: J G Hodges, ‘The Legal Experiences of Alfred Packer’ (1942) 19 Dicta 149.

R v Dudley and Stephens [1884] 14 QBD 273 DC The case of Dudley and Stephens was similar in regards to the Holmes case, where the question for the House of Lords boiled down to necessity. The defendants, along with Brooks (a 17 year old boy), were cast adrift in an open boat, after their yacht sank in a storm, 1,600 miles off the Cape of Good Hope. The defendants killed the boy on the 20th day after the wreck and were subsequently rescued four days later. The defendants were found guilty, though the reasoning of Lord Coleridge, CJ is a bit confusing. As he rejects the notion of necessity as a defence for murder, but then goes on to look at moral sacrifice to save the lives of others.

Procedurally, I tend to side with the reasoning of Keen, J. the justice who reflected the positivist perspective, however Foster, J., who was of the idealist persuasion seemed to make very good substantial arguments regarding the purpose of law, which he regards as varying from statute. It seems that if there are going to be rules, and then there needs to be an expected outcome that can be reached every time certain sets of facts present themselves to the court. Though if the law is counter to the judges gut instinct of what is morally (or ethically) regarded as being justifiable and fair, then the law should provide some margin of judicial latitude. It is on this point that I would tend to agree with Ronald Dworkin, professor of law at Harvard, but it is not to say that we should ignore the black letter of the law in favour of a judge’s righteous or demonic interpretation based on some notion of natural law (which is a very positivist approach to the case at hand).

From first reading the Speluncean Case to the writing of this article, my mind has vacillated between notions of what law is and what should be regarded as law. While I favour the positivist reasoning, I seem to ultimately favour the idealists’ views regarding law.