Chief Justice Roberts: Judicial Restraint and Partisan Gerrymandering

By Anthony C. Jenouri

Anthony C. Jenouri is a third-year law student at Albany Law School. Currently, he is a legal intern at both the Justice Center and Government Law Center. He also served as an intern at the law school’s Immigration Law Clinic, where he drafted habeas corpus petitions to help clients challenge their immigration detention. He was also a semi-finalist in the 2022 Donna Jo Morse Negotiations Competition.

Before law school, Anthony earned his bachelor’s degree from Binghamton University, where he majored in Philosophy, Politics, and Law. He also previously interned for Assembly Member Michael DenDekker at the New York State Assembly, where he served as clerk for the Consumer Affairs and Protection Committee. Upon graduation, Anthony hopes to pursue a career as a legislative counsel.

Chief Justice John Roberts has made it his mission to preserve the Supreme Court’s legitimacy, and he does so by avoiding the hint of partisanship whenever possible. This is partly why, when confronted with an issue as polarizing as partisan gerrymandering, the Chief Justice decided to punt on the issue. Specifically, he held in Rucho v. Common Cause that federal courts may not hear partisan gerrymandering cases because they present nonjusticiable political questions. Instead, such cases must be resolved by the political branches of government, namely the legislative and executive branches.

Critics have been quick to point out how partisan gerrymandering is antithetical to democratic principles. After all, it promotes an electoral system where the legislators are choosing their voters, and not the other way around. And it may seem disingenuous to suggest, as Roberts does, to defer to the legislators, since they are precisely the ones who benefit from keeping gerrymandering legal. While the Chief Justice appears to sympathize with his critics’ concerns, they are not enough to overcome his primary concern: preserving the Supreme Court’s legitimacy.  Allowing courts to intervene in the redistricting process, especially without a manageable legal standard, risks plunging the courts into the political thicket, thus damaging the judiciary’s image as the nonpartisan branch of government.

This paper examines the Chief Justice’s opinion in Rucho to understand how his concern for preserving the Court’s legitimacy informs his judicial decision-making. It also questions whether his approach to judicial restraint is prudent or whether it actually emboldens the extreme polarization he seeks to contain.

_____________________

To read the paper, open HERE.

Justice Jackson's Square Deal

By Mark Houston
Mark Houston, a third year law student at Albany Law School, graduated from SUNY Buffalo where he studied Anthropology and Geology. Prior to law school, he was a project director for a cultural resource management firm for several years working closely with state, federal, and tribal agencies.
Presently, Mark interns with the Environmental, Health, and Safety Counsel at General Electric Power & Water. He is also the Vice-President for the Pro Bono Program at Albany Law School and an Editor-in-Chief for the student section of the New York State Bar Environmental Section's newsletter, The New York Environmental Lawyer.
Mark wrote this essay for Prof. Bonventre’s Judicial Process Seminar, Fall 2013.

            A little over seventy-three years ago, future Supreme Court Justice Robert Jackson presented “A Square Deal for the Court.”[i]  While serving as United States Attorney General, Jackson presented his arguments in support of a shift in the Court’s analysis of constitutional issues.[ii]  

          Specifically, he supported the Court’s shift toward judicial restraint when interpreting legislation related to the “New Deal.”[iii]  While defending the Court’s shift, his argument proved oddly prophetic of the views of future justices in defending the court  and introspective as to the cyclical nature of the Court.

            In his address, Jackson came to the defense of the Court, foreshadowing the behavior of future justices of the Court.  His direct defense of the shift in the Court’s ethos has been repeated by many justices after him.  

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.
_____________________________
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)

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

The Lesser Evil Of An Undead Constitution

Comment on Antonin Scalia's Originalism: The Lesser Evil, and William Rehnquist's The Notion of a Living Constitution

By Marianne Stewart
Marianne Stewart, a third year student at Albany Law School, is a graduate of SUNY Fredonia where she studied Political Science and Theatre Arts. Marianne clerks for the Division of Tax Appeals and has started her own consulting business. She is a co-Director of the tax pro Bono Project and assists Dean Andrews in her research.Following graduation, Marianne is interested in clerking for the U.S. Tax Court and sees herself excelling in entrepreneurial endeavors.
The essay was prepared for Prof. Bonventre's Judicial Process Seminar, Fall 2013.

The discussions that ensued as I spiraled into these readings danced around a few topics of great interest to me, most notably the responsibility and function of judicial interpretation of the cornerstone of America's justice: our Constitution.

In his Originalism: The Lesser Evil, Justice Scalia discusses a celestial view of the judge's function, quoting Taft on the judge's function, having a "vision of things to come"[1] and, to the best of his abilities, altering the outcome of that vision On the other hand, in his The Notion of a Living Constitution, Justice Rehnquist has a more blunt and candid opinion, drawing wisdom from Lincoln's historic pioneering words proclaimed during his first inaugural address.[2]

 Lincoln courageously commented on the citizens’ frustration concerning the "vital questions affecting the whole people" that appear irrevocably fixed by the decisions of the Supreme Court.  Rehnquist approvingly quotes Lincoln’s conclusion that "the people have ceased to be their own rulers, having . . . resigned their government into the hands of that eminent tribunal."[3] 

Drawing on the opinions of those who choose to discuss the Constitution as a living one, Rehnquist openly surrenders to the idea that no one in his or her right mind would want a “dead constitution” and, therefore, the label of the "living Constitution" is one that has become merely a slogan used to elect a candidate to office.[4]

A Critique of Originalism and the Living Constitution

By Jeongkwan Lim

Jeongkwan Lim, an international student from South Korea, is in his second 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.

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


Rehnquist said in his article, “The Notion of a Living Constitution,” that “[t]he framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment.”[1]

He also agreed with Justice Holmes that the words of the Constitution have called into life a being, the development of which could not have been foreseen completely by the most gifted of its begetters.[2]  He seemed to put the idea of applying general language in the Constitution to the unceasingly changing environment of the “living.”

However, Rehnquist wanted to put a limitation on the notion of a living constitution.  He criticized the brief writer’s version of the living Constitution, which insists that the courts should play a role as the voice and conscience of contemporary society when other governmental branches have abdicated their responsibility.[3]

Therefore, the federal courts, Rehnquist insists, should not interfere. That is so, even if a state’s legislature and governor, or the federal Congress and the President, have not solved a particular social problem.[4]

Basically, Rehnquist’s philosophy of constitutional law is that, when the meaning of general phrases in the Constitution are subject to a broad interpretation, judges should reduce that interpretation in favor of the other branches of government.

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]

Textual Originalism versus Active Liberty

By Jeongkwan Lim

Jeongkwan Lim, an international student from South Korea, is in his second 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.

Jeongkwan's essay was prepared for the Judicial Process Seminar, fall 2012.

Why does Justice Antonin Scalia refuse to change his position on textual “originalim,” even though Judge Richard Posner provides evidence showing that his judicial philosophy severely lacks the coherence that is necessary to be persuasive?

Scalia, as a faint-hearted “originalist,” repeatedly insists that even though “originalism” is not perfect, it is relatively superior to “non-originalism.” According to him, it is superior with respect to “objectivity,” and objectivity is the most important characteristic when interpreting the Constitution.[1]

Nevertheless, when Scalia says “originalism” is an objective interpretive methodology, he is using two words that contradict each other: objective and interpretive. According to the Cambridge Academic Dictionary, “objective” means “not influenced by personal beliefs or feelings; fair or real.” “Interpretive” means “related to explaining or understanding the meaning of something.”[2]

Interpreting something is thus subjective. Without subjective personal beliefs or feelings--e.g., based on personal experience--we cannot shape our understanding of the meaning of something.

Posner anticipates Scalia’s probable response to the critique that there is no such “objectivity,” as Scalia claims, when we interpret the general words in the Constitution. As Posner puts it: “text as such may be politically neutral, but textualism is conservative.”[3]

Posner on Judging

His Reflections on Scalia and Breyer

By Yaronit Nordin

Yaronit Nordin, a second year student at Albany Law School, is a graduate of Bennington College in Vermont where she studied Literature and Photography.  After graduating law school, Yaronit hopes to practice in Vermont.
Yaronit's essay was prepared for the Judicial Process Seminar, fall 2012.

Judge Richard Posner’s jurisprudence or judicial philosophy can be said to emphasize honesty and practicality, and to discredit the idea that there can exist a perfect or unified analytical system applicable to any constitutional question that comes a judge’s way.

In “The Incoherence of Antonin Scalia,” Posner points to the failings and falsehood of “originalism” as Justice Scalia explains it in his most recent book.[1] In “Justice Breyer Throws Down the Gauntlet,”[2] Posner criticizes Breyer’s attempt, in his recent book, to fashion a loose-constructionist answer to “originalism” that Breyer calls “active liberty.”[3] 

Posner’s main problem with both Scalia’s and Breyer’s judicial philosophies is that both try to impose on the Constitution a framework that is too rigid for the real world, and one that is not or cannot be consistent with the document itself.[4]

Posner’s jurisprudence emerges from his analysis and is free of what he calls in his article on Breyer, a judge’s “self-censorship,” which leads judges to try to claim that their work is objective.[5] Posner embraces Ronald Dworkin’s “political morality”—a judicial philosophy that requires the judge to be a proponent of his legal determination, rather than to claim to be a passive oracle.[6]

Original Sin? Why a Prescription of Originalism...

as a Judicial Cure-All Falls Short of the Promised Remedy

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.
One more thing, he just 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.

Ben's essay is the third in the series on judicial restraint prepared in the Judicial Process Seminar, fall 2012.

What can judges do, and when can they do it? At the heart of every debate about originalism, textualism, strict construction, moralism, and the existence of a so-called “living constitution” lies this fundamental question.  The articles by Justice Scalia[1] and Justice Rehnquist[2] answer this question by a narrowly construed response, one that they agree is not perfect, but is the better of two potential evils.

            For proponents of originalism, the specter haunting the courtroom is the slippery slope.  Rehnquist attacks this issue in his criticism of the anonymous brief writer’s appeal to the Court;[3] Scalia—who is clearly more of an “originalist” than Rehnquist, at least in theory—does so in his critiques of the comments by Owen Fiss,[4] Ronald Dworkin,[5] and others.[6]  The originalist’s argument essentially goes like this: once you open the door to a broad interpretation of the Constitution, one that focuses more on contemporary values than the original language and intent of the document, chaos and confusion will ultimately ensue.  In Scalia’s words, it would turn the Constitution into “a novel invitation to apply current societal values”[7]—a concept that, according to the strictest advocates for originalism, is foreign to the founding principles of America’s judiciary.[8] 

            In general, proponents of originalism—exemplified here by Scalia—defend their perspective on judging by using three basic lines of attack:

Adherence to Judicial Restraint - Rehnquist vs. Scalia

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 Department Town & Village Courts and at the Appellate Division, Third Department, and 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 judicial restraint prepared for the Judicial Process Seminar, fall 2012.

Justice William Rehnquist, in discussing “The Notion of a Living Constitution,” believed that there are two susceptible meanings for its interpretation—that of Justice Holmes and that of the “brief writer.”[1] Holmes’ concept describes the Constitution as an “organism,” capable of “giving latitude to those who will later interpret the instrument to make the language applicable to cases that the framers may not have foreseen.”[2]  The “brief writer’s” connotation, on the other hand, calls for the judiciary to act “as the voice and conscience of contemporary society” by, in essence, using the Constitution as a vehicle to create law where none exists.[3]

Both definitions are ultimately addressing the parameters of judicial review—the method and means by which judges interpret and apply the Constitution.

Rehnquist was concerned that the “brief writer’s” description affords entirely too much latitude to the judiciary, thus abrogating the role of the people—who were designed to be the “ultimate source of [democratic] authority”—and replacing them with the personal viewpoints of, in many instances non-elected, judges.[4] That was not the intention the framers had in mind when drafting the Constitution, nor the people when adopting it.[5]

Essays on Judicial Restraint

Scalia's "Originalism" and Rehnquist's "[non-]Living Constitution"

This post begins a series of essays examining the respective notions of judicial restraint, advocated by two Supreme Court Justices, Antonin Scalia and William Rehnquist, in articles that have proven to be extremely influential to their devotees, and have provided a great deal of grist to commentators.

Originalism: Really the Lesser Evil?
By Laura K. Bomyea
Laura K. Bomyea, a third year student at Albany Law School, received her undergraduate degree from Bard College, where she studied philosophy and literature. Among other law school activities, she serves as Student Editor-in-Chief of the New York Environmental Lawyer. Read the Essay

Adherence to Judicial Restraint - Rehnquist vs. Scalia
By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is a graduate of the United States Military Academy, where she studied law and systems engineering. Among other law school activities, she serves on the Albany Law Review as Executive Editor for State Constitutional Commentary. (Her essay will appear in the next post.) Read the Essay 

Original Sin?
Why a Prescription of Originalism as a Judicial Cure-All Falls Short of the Promised Remedy
By Benjamin P. Pomerance
Ben Pomerance, a third year student at Albany Law School, is the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center. Among his other activities in law school, he serves on the Albany Law Review as Executive Editor for Symposium. (His essay will appear in the following post.) Read the Essay 

Scalia's "Originalism" and Rehnquist's "[non-]Living Constitution"

This is the first in a series of essays examining the respective notions of judicial restraint advocated by Antonin Scalia and William Rehnquist

Originalism: Really the Lesser Evil?

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.

Both of these pieces—Originalism: the Lesser Evil by Antonin Scalia[1] and The Notion of a Living Constitution by William Rehnquist[2]— raise the same basic questions: from where does the judiciary derive its legitimacy, and why, under these frameworks, is it taken for granted that the closer a branch’s relationship to popular democracy (elections, deferring to the majority on social issues, etc.) the greater its legitimacy?

Why is it taken as a given that a branch which is popularly elected necessarily affords greater protection of the people, greater freedom, than a branch like the judiciary, which is the furthest removed from “popular democracy”?[3] One of the central beliefs of both of these articles seems to be that the judiciary’s legitimacy is derived from its limited role as interpreter and arbiter of the Constitution—in Scalia’s case, as interpreter of the original intent of the Framers—and little more.[4]

These arguments seem to be based on the idea that the judiciary, because it is not elected by the populace, is somehow less capable, less empowered, to venture into social issues that are not cleanly covered by the provisions of the U.S. Constitution.[5]