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.

Judicial Activism and Restraint: Scalia’s Originalism and Jackson’s Pragmatism

By Howard Carter

Howard Carter is currently in his final semester at Albany Law School. Howard is a retired U.S. Navy SEAL Master Chief who served in the SEAL Teams from 1990 to 2012. Howard has bachelors’ degrees from Boston University and The Massachusetts College of Liberal Arts, as well as a Master’s Degree from Dartmouth College. 


The author views the Court’s authority as gained in Marbury v. Madison (1803).  This authority gained in Marbury is described under the modern context of conservative and liberal judicial politics and philosophy.  The topic then narrows to a comparison of liberal and conservative sub sets: pragmatism and originalism.  The originalism of Justice Antonin Scalia and pragmatism of Justice Robert Jackson are compared and contrasted in order to look at two particular justices differing methodologies.  The author finishes the analysis with comparison and contrast of Justice Jackson’s dissent in Korematsu v. United States (1944) and Justice Scalia’s dissent in Hamdi v. Rumsfeld (2004).

The United States Constitution does not explicitly state that the Supreme Court has the power of constitutional review.  Due to this lack of authority, one of the first important constitutional law cases is Marbury v. Madison in 1803.   Marbury displays the early Court’s tenuous legitimacy and can be viewed as the Court’s assertion of power.

Current Chief Justice John Roberts stated that prior to Marbury, “the Supreme Court was a court of law, but it wasn't established as a constitutional court.  So, its early decisions tended to be just everyday run-of-the-mill legal disputes, not great constitutional questions.”

As such, it is sixteen years after the adoption of the United States Constitution when Chief Justice John Marshall asserts power with his opinion in Marbury: “ It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Marbury is a political case.  It is a case where the Justices grapple with the legitimacy of the Court to decide on an action that impacts a political outcome.  It is considered within the context of the politics in which the case arose.   In Marbury the Court balances the political by grappling with the question of the overall nature of the Court’s authority first, and the specifics of jurisdiction second.

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To read the paper, open HERE.

Ginsburg (and sometimes Scalia) on Search and Seizure

By Joshua Greenfield
Joshua Greenfield is a third year student at Albany Law. He graduated from Syracuse University in 2011 with a degree in Art History. Josh has interned at CBS's legal division and the New York Public Employment Relations Board. He is currently a contributing member of the Center for Art Law website writing on various issues in the field of art law.
This essay was prepared for Prof. Bonventre’s Judicial Process Seminar, Fall 2013.


Looking back on the last ten divided Supreme Court decisions in which Justice Ginsburg voted on the issue of search and seizure under the Fourth Amendment, it is evident that Ginsburg is, above all else, a proponent of greater individual and privacy rights.[1] Justice Ginsburg’s decisions are not guided by a need to ensure that law enforcement complies with procedure. Rather, it is the level of intrusion the government places on an individual that determines how she votes.

Her “stream of tendency,”[2] the underlying principle guiding her decisions, is based on greater individual freedom and personal autonomy. In every single divided case involving searches and seizures in the last ten years or so, Ginsburg has voted for greater individual protections from governmental intrusion rather than allowing law enforcement to exercise discretion.

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]

Gay Rights & the Judicial Process

Connecting the Dots Behind Gay Rights Decisions

By Matthew Newman
Matthew "Aidyn" Newman is a class of 2012 graduate of Albany Law School with a specialty in Criminal Law. He received his undergraduate degree in East African studies from Union College, where he researched his thesis on Japanese yakuza and spent a semester abroad studying at Kansai Gaidai in Osaka, Japan.
This paper was prepared for the Judicial Process Seminar, Fall 2011.

One of the greatest challenges confronting a judge is how to decide a case.  Some judges adhere to "originalism," others are "literalists."  Some judges take into account the consequences of their actions, others believe this to be the job of the legislature.  No matter what methodology they use, there is always a secret inner conflict in every judge, between the "realist" and the "formalist."

The "formalist" judge is a neutral observer, nothing more.  He or she applies the facts of any given case to the legal framework in question and draws a conclusion based on these factors.  The "realist," on the other hand, cannot help but to draw upon his or her own personal experiences, morals, and leanings.

This paper will examine four important gay rights cases decided by four courts in an attempt to discern just how palpable the "hidden" morals and ethics of individual judges on these courts are.  First, it will examine the Supreme Court and Justice Scalia's dissent in Lawrence v. Texas.  Then, in Fricke v. Lynch, it will examine Chief Judge Pettine and whether he fits the "realist" paradigm.  Next, the majority's opinion in Goodridge v. Department of Public Health will provide a contrast to the dissent in Lawrence.  Finally, Varnum v. Brien was chosen as a stark contrast to Goodridge.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

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]

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.