Understanding the Criticism of Roe v. Wade

 A Decision Exemplifying the Worst of Originalism and Legal Realism

By Nathaniel Clark

Nathaniel Clark is a third-year student at Albany Law School. Prior to attending law school, he earned his bachelor's degree from the University at Albany, State University of New York, where he majored in Emergency Preparedness, Homeland Security, and Cybersecurity. Additionally, Nathaniel minored in Philosophy.

At Albany Law, Nathaniel is a member of the Albany Law Review. He has interned with the New York State Office of the Attorney General and Magistrate Judge Christian F. Hummel of the Northern District of New York. He is currently a law clerk at the law firm of O’Connell & Aronowitz, P.C.

How should a judge decide a case? It seems the most basic of questions—if it is unclear to the presiding judge how a case should be decided, it seems a fool’s errand to ask attorneys to present arguments to persuade that judge, or to expect any consistency from the rule of law. And yet, the method by which a judge should render a decision in a case is the subject of significant debate. Some theorists suggest that a judge should make his decision by looking to the original meaning of the text of the statute at issue and applying the words of the statute as they meant when written to the case at hand. Others, however, argue that the ultimate duty of a judge is to weigh “the social advantage” of the laws at issue. Naturally, this dispute over the role of the judge has led to dispute over the decisions handed down by judges.

One of the most disputed decisions handed down by a judge in the 20th century is the Supreme Court’s decision in Roe v. Wade, which identified a fundamental right to privacy and held that it encompassed a woman’s decision as to whether or not to terminate her pregnancy, with some limitations. A decision such as this, which has developed into a lightning rod case about which Supreme Court nominees and political candidates are questioned, is an interesting case study on the process of judicial decision-making. Examining the judicial theories used in such a key decision, and whether those theories were followed, gives key insight into the process by which a judge decides a case.

This paper will examine Roe through the lens of legal realism, as enumerated by Justice Oliver Wendell Holmes, Jr., and originalism, as explained by Justice Antonin Scalia, in an attempt to understand why the decision has remained divisive from a legal perspective, independent of its substantive ruling. I will argue that this divisiveness stems from the fact that it is representative of the worst of both judicial decision-making theories, as it attempts to ground its findings in history but makes an incorrect historical analysis, and it sets out to follow Holmes’ method of legal realism but goes too far in its judicial legislation.

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To read the paper, open HERE.

Philosophy & Jurisprudence: The Thoughts and Methods of Holmes, Cardozo, and Brandeis

By David Dickinson

David Dickinson just completed his 2nd year at Albany Law School. He earned his bachelor’s degree in Political Science from Hobart College with a minor in international relations.
Prior to attending law school, David worked for four years at the New York State Department of Labor. While a student at Albany Law, David has served as a faculty research assistant and the student editor-in-chief of The New York Environmental Lawyer, a publication of the Environmental & Energy Law Section of the New York State Bar Association.
David’s paper was prepared for Professor Bonventre’s Supreme Court Seminar, Fall 2018.

Supreme Court Justices have often had their judicial philosophies analyzed and described, their evolutions tracked and notated, and their insights in major and minor cases outlined, quoted, and footnoted. This paper aims to draw out, so much as it is possible, some of the philosophical tenets providing the foundation for the thought of three of the nation’s most respected jurists: Oliver Wendell Holmes, Benjamin Cardozo, and Louis D. Brandeis.

Each of these Justices had their own method of preparing for and approaching cases, Additionally, each looked to varied political and philosophical traditions to begin these inquiries. For example, Holmes jurisprudence reflects a tension between the thoughts and concepts present in his legal writing, which find their foundations in philosophies, and Holmes’ own desire to be seen as having original thoughts and insights. This tension can be found in his writings on natural law, on common law, and on free speech.
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To read the paper, open HERE.

Judicial Review and Democracy

Legitimacy of Judicial Review

By Jeongkwan Lim

Jeongkwan Lim, an international student from South Korea, is in his third year at Albany Law School. He studied political science and philosophy as an undergraduate and received a masters degree in political science at Sogang University in Korea.  Prior to law school, he worked for a local government institution in Korea as a researcher.  Jeongkwan is interested in international law and philosophical debates about judicial power and the judicial process.
JK's paper was prepared for Prof. Bonventre's Judicial Process Seminar, Fall 2012.


Imagine that there are only three countries: A, B, and C, located on the same continent and not on friendly terms with each other.  Country B, the weakest of the three, is the only country that produces gas.  To strategically exploit this unique advantage, country B has two choices.  One option is for Country B to act as a power balancer, similar to Switzerland.  The other possibility is for Country B to form an alliance with the strongest country, like South Korea with the United States.

Despite these options, however, history proves that Country B’s enemies may try to seize the gas by force. The United States Supreme Court (“the Court”) faces the same situation as Country B.  Judicial review is the only power the Court can use to survive.  Without this power, the Court would lose its authority.

Historically, the Court has used the power of judicial review to act as a balancer or to make an alliance with Congress or the President.  However, anti-court parties upset by the Court’s decisions have continuously tried to deny or destroy the power of judicial review.  One of these attacks refused the legitimacy of judicial review.

This paper explores the sources that might legitimize judicial review:  the Constitution, democracy, and American history. However, none of these areas viewed independently clearly validates judicial review, so to answer the anti-court criticism, it is necessary to review each area.  In the first place, the paper reviews the anti-court parties’ theory.
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To read the entire paper, open HERE.

Holmes: As Portrayed in Korean Newspapers

By Jeongkwan Lim

Jeongkwan Lim, an international student from South Korea, is in his third year at Albany Law School. He studied political science and philosophy as an undergraduate and received a masters degree in political science at Sogang University in Korea.  Prior to law school, he worked for a local government institution in Korea as a researcher.  Jeongkwan is interested in international law and philosophical debates about judicial power and the judicial process.
JK's presentation was prepared for Prof. Bonventre's Judicial Process Seminar, Fall 2012.

(click to enlarge)

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To view the complete slide presentation, open HERE.
(Then, for the best view, click File + Download, and Open the download.)

Judges: Lawmakers By Any Other Name

By Laura K. Bomyea
Laura K. Bomyea is a third year student at Albany Law School.  She received her undergraduate degree from Bard College, where she studied philosophy and literature.  Laura serves as Student Editor-in-Chief of the New York Environmental Lawyer, an Associate Editor on the Albany Law Review, a Student Editor with the New York Government Law and Policy Journal, and a Research Assistant with the Government Law Center at Albany Law. She currently works as a Law Clerk with Young/Sommer LLC.
This essay was prepared for the Judicial Process Seminar, Fall 2012.

The question of the role of judges as lawmakers is best addressed by Judge Cardozo’s assertion that the process of judging is not equivalent to matching colors in a card index. Rather, there are some “principles of selection” guiding the judge in his decision-making, even if those principles are not apparent to the judge himself.[1]

A judge cannot help but be a lawmaker.  For the process of making decisions, of creating new law where none existed before, is inherent in the process of judging. That is why judging is nothing like matching colors in a card index and spitting back the best match. 

Once a judge reaches “the land of mystery when the Constitution and statute are silent” on a given issue, the real work of judging begins.[2]  Precedent does not always help. Often it is merely, as Holmes calls it, prophecy.[3]

The judge needs to make a rule, or draw the case at hand within the net of existing rules, or carve out exceptions. He needs to decide something new, even by invoking something old in a new context, and that is where he puts on his hat as a lawmaker.

Judges as Lawmakers: An Inescapable Reality

By Joanna Pericone

Joanna Pericone, a third year student at Albany Law school, studied political science as an undergraduate at LeMoyne College.  Before attending law school, Joanna worked for the New York State Assembly in the communications office.  During law school, she has worked as a law clerk at the Albany County District Attorney's Office, and as a judicial extern for the Honorable Lawrence Kahn.  Currently, Joanna serves as a law clerk in the Albany law firm of Ganz Wolkenbreit & Seigfeld.  Joanna is also the Chair of the Domenick L. Gabrielli National Family Law Moot Court Competition and a Senior Editor on the Albany Government Law Review.

Joanna's essay was prepared for the Judicial Process Seminar, Fall 2012.

The common conception regarding the role of judges and the courts is that judges should not be making law.  As the unelected branch of our government, judges should defer to the decisions of the populous unless those decisions are a clear violation of the federal Constitution.  

Judges themselves have even perpetrated this impression by publicly rejecting the idea that they do more than simply apply the black letter law to the facts of a case to reach their decisions.  In those cases, judges do not want to be labeled as “activists,” because the notion of a judge creating law is unfavorable and seen as an abuse of judicial power.  

In the course of the study of judges and the judicial process, however, it is apparent that despite whether they recognize it or not, judges do more than “umpire,” in the words of Chief Justice Roberts.[1]  Rather, they often interject their own ideologies into the decisions that are being made.

In the beginning of the century, Justice Benjamin Cardozo gave a lecture at Yale University where he openly acknowledged that “judge-made law [is] one of the existing realities of life.”[2]  Cardozo articulated in his lecture that not every case is black and white and easily applicable to precedent.[3]  If a case were easy, it would never reach the high courts.

Judicial Activism: Legal Dirty Words

By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial District Town & Village Courts and at the Appellate Division, Third Department, as well as a summer associate at Couch White, LLP.
Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.
Micky's essay is the second in the series on judges as lawmakers prepared for the Judicial Process Seminar, Fall 2012.

Any implication that a judge is engaging in judicial activism is anathema to most judges.[1]  Judges don’t make law. Judges render decisions based solely on the application of black letter law to the facts of any given case.

According to Posner, “[j]udges tend to deny the creative—the legislative—dimension of judging . . . because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis.”[2]

But no matter how hard judges try to deny it, whether they realize it or not, judicial lawmaking is inescapable.  Judges are not independent arbitrators free of the influences pervasive in society.  Judges “may try to see things as objectively as [they] please,” counsels Judge Benjamin Cardozo, but “[n]one the less, [they] can never see them with any eyes except [their] own.”[3]

What's Wrong With Judicial Lawmaking Anyway?

By Benjamin P. Pomerance

Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.

Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project. He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication. Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter. He has previously been published by the Center for Judicial Process. (See Original Sin? Why a Prescription of Originalism as a Judicial Cure-All Falls Short of the Promised Remedy, 9/29/2012.)

One more thing, he organized an extraordinary symposium for the Law Review on Free Speech. It is no exaggeration that Ben planned and executed one of the very best events in my 22 years at Albany Law School.

This essay by Ben is the first in the series on judges as lawmakers prepared in the Judicial Process Seminar, Fall 2012.

Here’s the dirty little secret: Judges make law.

Actually, it isn’t much of a secret. The cat has been out of the bag since at least 1897, the year of Justice Oliver Wendell Holmes, Jr.’s seminal essay The Path of the Law.[1]

“Theory is my subject, not practical details,” Holmes wrote.[2] Then, a few lines later, he continued, “[t]heory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject.”[3]

In other words, simply applying law to facts and reaching an obvious conclusion cannot decide the vast majority of cases. The cases are not obvious, and the decisions are tough. And in order to reach them, judges must interpret the constitutional and statutory provisions to reach an answer. All of which leads to one unavoidable conclusion: Judges making law.

Many of the great judges recognize this reality. Holmes gave way to Benjamin Cardozo,[4] whose mantle of judicial realism has been taken up by today’s pragmatists like Richard Posner.[5] These judicial luminaries have stated—not as a confession but as a fact of life—that their job implicitly comes with more than a little bit of lawmaking.

Cardozo spoke freely in his celebrated lecture series, The Nature of the Judicial Process,[6] about his own use of value judgments and societal foresight and sensibilities in deciding cases.[7] He talks about the many ingredients that go into his decisions: logic, justice, sentiment, and reason.[8] Posner essentially does the same when criticizing the hard-line ideological stances of Justice Scalia and Justice Breyer.[9]  Get over it, he seems to be saying.  We know you make law.  And it’s okay.[10]

Holmes & Cardozo: An Introductory Presentation

By Michelle K. Mallette

Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering. Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial Department Town and Village Courts and at the Appellate Division, Third Department, and as a summer associate at Couch White, LLP.
This presentation was prepared for the Judicial Process Seminar, Fall 2012.

(click to enlarge)

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To view the complete slide presentation, open HERE.

(Then, for the complete presentation with notes, click File + Download and open download.)

William Howard Taft & His Court

By Sean T. Weber

Sean Weber is a 2012 graduate of Albany Law School.  While a student, Sean served as an Executive Editor of Notes & Comments for the Albany Law Review and as a Student Representative for the Student Bar Association Senate.  He received his undergraduate degree from the Rochester Institute of Technology.

This presentation was prepared for Professor Bonventre's Judicial Process Seminar, Fall2011.

(click to enlarge slides)

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To view the complete slide presentation, open HERE.

(It is then best to download the presentation and view it from there.)

The New York Court of Appeals: Analyzing the Status of Workers’ Rights in New York

By Christina French
Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel.
This paper was prepared for the Judicial Process Seminar, Fall 2011 semester. It is Ms. French's 2d publication for the Center. (See Holmes and Cardozo: Early Contributions to the Progression of the Law, Nov. 28, 2011.)

This paper will provide a brief summary of several judicial opinions issued by the New York State Court of Appeals regarding employee benefits awarded for accidental on the job injury. The intention of the exercise is to provide the practicing attorney and other legal scholars with some insight into the status of workers’ rights as represented in the decisions of the New York Court of Appeals.

Two pieces, written by Holmes and Cardozo, contribute to the study of the judicial process by articulating the theory of legal realism and its approach to understanding what it is that judges do when they make decisions, and how that contributes to the progression of law. Before delving into the decisions, it is important to explore the theory of legal realism and how it can be applied to the study of the law of the courts.

Justice Holmes has written about the way in which judges begin with a decision first, and only after that decision is made, do they come up with reasons to explain them. Similarly, Justice Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins, and that is with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and logical approach to decision making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

There are many avenues of workers’ rights issues that could be reviewed in order to provide the most comprehensive overview of how the topic is treated by the New York Court of Appeals. This paper will focus on those worker’s rights issues as related to awarding worker benefits for on the job injuries. The research was further limited to three years to ensure that the same composition of judges decided all of the cases.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Holmes and Cardozo

Early Contributions to the Progression of the Law
By Christina French 

Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Two pieces, one written by Holmes[1] and another by Cardozo,[2] contribute to the study of the judicial process by articulating the theory of legal realism: the insights of realism to understanding what it is that judges actually do when they make decisions, and how that contributes to the progression of law. Holmes explains the way in which judges begin with a decision first, and only after that decision is made do they choose the reasons to explain them. Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins--that is, with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and rigidly logical approach to decision-making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

A Reasonable Path to a Just Result

Cardozo's and Holmes' Counter to Judicial Restraint

By Molly C. Casey

Molly Casey, a third year student at Albany Law School, is a Senior Editor for the Center. She works in the New York State Legislature as a Legislative Aide to Senator Lee M. Zeldin. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Benjamin N. Cardozo wrote The Nature of the Judicial Process,[1] while serving on the New York Court of Appeals, six years before he rose to the position of Chief Judge, and eleven years before he succeeded Oliver Wendell Holmes, Jr. as an Associate Justice on the United States Supreme Court. In this article, Cardozo discusses the role of the judiciary and the processes it employs in the contexts of statutory interpretation and the evolution of case law.

Cardozo’s view of the purpose and function of the judiciary runs counter to judicial restraint, the theory advocated by such other renowned justices as Antonin Scalia and William Rehnquist. While an unequivocal endorsement of judicial activism should not be read into Cardozo’s article, he does at one point use the metaphor of the judge as an “artist” to suggest that on some level he endorses a more activist approach.

With respect to statutory interpretation, Cardozo articulates the role of the judiciary as filling in the gaps and clearing up ambiguities in statutes created by the legislature. Statutes are often “fragmentary, ill-considered and unjust” and the judge must act as the “interpreter for the community of its sense of law and order.” The judge cannot simply apply the law to the facts because the law, as articulated by the legislature, is incomplete. Nor may the judge exercise restraint because there is no authority restraining him.

Holmes and Cardozo on Judicial Decisionmaking

A Contrast to Scalia and Rehnquist

By Bronson C. Stephens

Bronson Stephens, a Third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

In his The Path of Law,[1] Oliver Wendell Holmes starts by defining the study of law as the prediction of judges’ determinations; that the whole of jurisprudence is creating prophesy and an organized system with which to make prophesy. Holmes is clear from the start that what he means by law is “the prophecies of what the courts will do in fact.” 

Holmes delves into what he sees as a widespread issue affecting learning and understanding of the law. The issue is confusion over and merging of morality and law. He gives the example of viewing the law through the eyes of a “bad man,” a perspective he returns to again and again. The idea is that, to a bad man, the law is a “body of dogma enclosed within definite lines.” The bad man only values knowing the law based on the “material consequences which such knowledge enables him to predict….” This distinction is of fundamental importance when it comes to prophesizing. In this section, Holmes argues that removing morality from law is the only way to see its honest functioning structure.