Judicial Activism

During her confirmation hearing, Justice Sonia Sotomayor repeatedly, and rightly, assured the Senators that a judge's primary duty was to follow the law that applied to the particular case. The mission of courts and judges is the administration of justice. However, sometimes strictly applying the specific law that applies to a particular case will result in an obviously unjust result. Unfortunately, none of the Senators asked Sotomayor a general question that I would have asked. I respectfully raise the following question for debate: Does a judge, in the interest of justice, have the inherent authority to not follow the law (the specific law that incontestably applies to the case) in a particular case so as to prevent an outrageous and unconscionable result and to render justice to the litigants? I answer in the affirmative for the following reasons: First, it is impossible for the lawmaker to enact laws that will cover all the possible cases that can arise in society. A civilized society necessarily needs an institution (the judicial branch - courts and judges) that will engage in the administration of justice. Cases will arise, however, where there are no applicable laws, or where applying the applicable law will result in an intuitively "outrageous and unconscionable" result. Accordingly, judges necessarily have inherent authority to decide cases by rendering equitable justice to the litigants. 1 Second, in practice, a judge (and other actors in the administration of justice) will engage in the practice of rule departure 2 in a particular case or situations so as to prevent injustice, or to prevent an obviously unjust result, which will occur if the applicable law is strictly followed. In one case, a great trial judge departed from the applicable law so as to prevent the commission of probable future acts of injustice in prison against the defendant. 3 I look forward to meeting an opponent who will take the negative in this debate. ____________________________ 1. "Equitable Justice is that kind of justice which Aristotle postulated as being a form of justice superior to legal justice. Realizing that the "universality" (generality) of the law sometimes gave rise to injustices, Aristotle postulated equity, which was to function, though the judge, as a "correction of the law where it is defective owing to its universality." (NE 421) But Aristotle maintained that it, i.e., the law, "is nonetheless correct; for the error is not in the law nor in the legislator but in the nature of the thing." (NE 421) 2. Rule Departures: A practice distinct from, but related to, civil disobedience is rule departure on the part of authorities. Rule departure is essentially the deliberate decision by an official, for conscientious reasons, not to discharge the duties of her office (Feinberg, 1979). It may involve a decision by police not to arrest offenders or a decision by prosecutors not to proceed to trial, or a decision by a jury or by a judge to acquit an obviously guilty person. Whether these conscientious acts actually contravene the general duties of the office is debatable. If an official's breach of a specific duty is more in keeping with the spirit and overall aims of the office than a painstaking respect for the particular duties is, then the former might be said to adhere better than the latter does to the demands of the office (Greenawalt, 1987, 281).6 http://www2.mnbar.org... 3. "9 I was once appointed to represent a naive young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought "was right." Odden then growled at the client, threatened prison if he screwed up, and placed him on probation." http://www2.mnbar.org...