I recently finished reading the biography of Justice William Brennan, considered one of the most influential jurists in United States Supreme Court history. Brennan is perhaps best known as the liberal bulwark of the Court in a tenure that spanned the reign of three Chief Justices, Warren, Burger, and Rehnquist.
It is no surprise that Brennan’s liberal leanings, exhibited most prominently in his rulings from the Court, made Brennan a much-reviled figure among conservatives, who disliked him as much for his views as for his success in turning those views into law. These critics complained that Brennan acted beyond his authority as a judge whose role it is to simply apply the law, not make it. Instead, the criticism goes, Brennan would act as kind of a super-legislature, grafting his personal views of morality and human dignity into his judicial opinions.
Whether these accusations have any basis in fact is perhaps open to dispute. To be sure, Brennan cannot be considered a judge whose ultimate fidelity lies in the words of a statute instead of in his convictions of right and wrong. With a properly framed question, Brennan, I am sure, would have admitted as much if he were still alive. Indeed, a popular story of Brennan’s tenure as Supreme Court justice is that he would invariably ask his clerks who have just come on board for a new term what the most important rule is when it comes to judging on the Supreme Court. After fielding incorrect answers like “due process” or “equal protection” he would raise up five fingers and say that the most important rule in the Court is to attain votes from five justices in a case, which constitutes a majority on the Court. Activist? Perhaps. Result-driven? Maybe so.
But focusing on such mechanisms of judicial rulemaking do nothing to advance the debate of what we consider to be a model society that is governed by the rule of law rather than one that is run by the whim of the individual. As Brennan’s “rule of five” vignette demonstrates, judging necessarily involves the employment of policy preferences; after all, if judging was as simple and straightforward as applying the law to the facts, as is the myth most prominently trumpeted perhaps by Chief Justice Roberts (his judge as umpire calling balls and strikes analogy comes to mind), why aren’t all cases before the Court decided on a unanimous basis? And this is true whether the judge is considering the case of a derelict landlord who fails to fix a tenant’s leaky faucet or one involving more weighty constitutional issues like whether the government can prohibit flag-burning consistent with the First Amendment (it cannot). There are exceptions to this phenomenon, of course, but the simple truth is that judges are most of the time lawmakers, only in different garb.
I would argue that the sooner we recognize and accept this, the sooner we can move on to more substantive discussions as to which judge-made laws, and the principles which underlie them, are more consistent with what we view as a just and equal society. Fortunately, Brennan got past this a long time ago and, as a consequence, achieved unparalleled success in changing the direction of this country through his rulings, one that sought to recognize and protect the dignity of the individual above all else.