Myths and The Mythologizing Mythmakers Who Tell Them

In one of the very first assignments of the law school semester, we were asked to evaluate whether a young man should be prosecuted for burglary. The relevant statute said that burglary (which, by the way, has a much stiffer penalty in Massachusetts than just breaking-and-entering) is committed when a breaking-and-entering occurs at night, in a "dwelling house", when an occupant is present. Seems pretty straight forward, right? Here's the catch: our young man had broken into the basement of an apartment building, at night, when an occupant was doing laundry. The question we had to analyze was whether the basement of an apartment building counted as a "dwelling house" under the statute.

So we all did our research. Turns out that a series of judges had decided cases regarding burglary that were equally tricky on this matter. Over the years, the judges in this line of cases had adopted a three-requirement test to determine if a structure is a "dwelling house": (1) is it secured? A gazebo was ruled not to be. (2) Is it used for activities central to domestic life? A court felt that a shed used to store food was. (3) Is it easily accessible to the main habitation? The courts ruled that a parking garage across the street was not. Do those seem like reasonable requirements to you?

At this point, a true "strict constructionist" would cry "foul". No legislative body ever voted on those three requirements, the judges just made them up. That's absolutely true, and it gets to the heart of the debate over judges: should judges have the authority to do that? The truth that few Republicans admit is, they already do have that authority, and they have for about 900 years now.

Our legal tradition depends on what is known as the "common law" tradition in England. In fact, every state at its admission to the Union adopted a law stating, in effect, "we adopt the common law of England as it was in 1776." Many such provisions appear in state constitutions. The common law dates back to the 12th and 13th centuries in England. Essentially, the common law is an accumulated body of judicial decisions that are more or less binding on current judges by the legal principal of "Stare Decisis", Latin for "let the decision stand". What that means is that judges like to follow the principles and decisions of other judges, and are legally obligated to do so when those decisions are made by a higher court.

This practice is why, if you've ever seen a good legal drama on TV, you've seen a lawyer run into the room excitedly proclaiming "I found a precedent!" That character is telling the audience that a judge has made a decision on a case similar to his, and given some guidelines that the judge in his case can or must follow. This is of great benefit to society, because legislators simply cannot write laws that will never need interpretation. They first of all don't have the time to write "this is exactly what we mean by abc in xyz circumstance". They're too busy running for re-election. Second of all, it's impossible to foresee all of the scenarios that might need interpretation: for instance, a while back in class we read a recent case from California where a man died, but before he did he had some of his semen frozen for posterity's sake. 4 years after his death, his widow decided to have a child using the frozen semen. After giving birth to the dead man's offspring, she sued his two grown children to try to make them share the inheritance with their new sibling. Obviously, the California state legislature had not addressed this scenario when they wrote the inheritance laws for their state, so some judicial interpretation was in order.

This is where the myth comes in: during the Civil Rights Era, SCOTUS, lead by Chief Justice Warren, made some incredibly ground breaking decisions to break down segregation. To do this in many cases, they used a broad interpretation of the 13th Ammendment, which officially ended slavery in this country. And thus began the reacquaintance of the Southern conservative politician and the strict constructionist. After all, the ammendment did only say it was ending slavery, right? So SCOTUS must be overstepping its authority, right? And thus the myth of the "Judicial Activist" was born. The term was meant to convey that judges were overstepping their role and, in essence, breaking the law. Judges made decisions which they were within their legal and moral authority to make, and they were labeled judicial activists by the conservatives.

To do this, the strict constructionists had to ignore 900 year of history and the established legal practices of our nation. They did so brazenly to accomplish their own agenda. Unfortunately, when Roe v. Wade was decided, strict constructionists duped unsuspecting Christians into their camp by labeling Roe a fine example of judicial activism. Of course, in our present era most strict constructionists are not connected to the overtly racist past of the movement (for more on this, scroll down to my previous post entitled "The Once and Fututre Sting"), including, clearly, Clarence Thomas. (Law school classroom activity: get out your yarn and felt. Make a puppet out of Clarence Thomas. Tada! You're now Antonin Scalia). Nevertheless, their judicial philosophy is harmful to our country, and too many Christians advocate nominating them to SCOTUS and other high courts in the vain hope of doing something about abortion, to replace judges who are making, by and large, sound decisions.

So to summarize, the Judicial Activist is as mythological as the tooth fairy and Santa. Judges do what judges have always done, and if the strict constructionists don't like it, they can find another country.

PS: Thanks for the post name inspiration, Al Franken. Good luck in your senate race!