The Maryland General Assembly has just completed its work

The Maryland General Assembly has just completed its work (or has it?).  In light of the General Assembly’s adjournment without enacting any new measures to address the problems associated with the upcoming spike in our electric bills and the concern of the public with the lack of long-term supervision of sexual predators in our communities, perhaps our legislators will be back in Special Session before the end summer to take further action at least in the area of utility rate regulation and/or cost containment.  We shall see what we shall see or as a famous political philosopher, former Federal Election Commissioner, Danny Lee McDonald once said, “You know, you never know.”

In any case, the campaign has now started.  In fact, it actually started while the legislators were still in session.  As I noted in my last column, for the first time judicial philosophy will be a political issue in the upcoming campaign.  Unfortunately, that issue will not be discussed in terms that will help the voters choose candidates who support a coherent judicial philosophy, which they would want judges to utilize in deciding cases.  Instead, it will be cast as a debate on the issue of the appropriate level of “judicial activism.”

The issue of judicial philosophy is certainly not addressed clearly when it is framed in this manner.  One legislator’s or one judge’s “judicial activism” is seen by another as its “exercise of its continuing duty to uphold the law.”

As prime examples of that politically polarized discussion, I cite the examples of the Terri Schaivo case in the Florida and federal courts and what has been called “the same sex marriage case” in Maryland.  In both those cases, opposite sides in the politically polarized world that we now live in sought to have courts impose their political agenda on parties in actual cases without reference to, and in violation of, established judicial procedures and the facts of the cases themselves.  When conservative federal and state court judges refused to impose these political and religious agendas on the parties in these cases, the impeachment, removal and sanctioning of those judges was sought without any respect or even consideration for the separation of powers, as well as the checks and balances embedded in our federal and state Constitutions.  This is not a healthy way to address political issues and is certainly not a constructive way to decide what philosophy should guide our judiciary in discharging their Constitutional responsibility to decide cases properly presented to them.  These may include those cases that are litigated as a result of difficult or even intractable social problems giving rise to issues which the other two popularly elected branches of government refuse to address for political reasons.

Professor Cass Sunstein of the University of Chicago School of Law has suggested a much better frame of reference for us to choose a coherent judicial philosophy in his book “Radicals in Roles.”  In this book, Professor Sunstein describes “the four approaches that have long dominated Constitutional debates” and then demonstrates how they “apply to the Constitutional and legal questions that trouble us today.”

Many American liberals favor the first position.  Professor Sunstein refers to it as “liberal perfectionism.”  Adherents to this judicial philosophy profess to be following the text of the Constitution, but they see it as a “dynamic document,” a “growing Constitution,” which they believe “reflects their own deepest beliefs about important social and political issues.”  More than any other group, American liberals, when they are committed to a right want the courts to interpret the Constitution to include that right in order to, as Professor Sunstein puts it, “make the Constitution the best that it can be.”

This view is contrary to the second position labeled by Professor Sunstein as “majoritarianism.”  Adherents to this judicial philosophy want to reduce the role of the judicial branch in American government in order “to allow the democratic process to work its will.”  Majoritarians believe that “courts should defer to the judgments of elected representatives unless the Constitution has been plainly violated.”  The greatest Majoritarian was Oliver Wendell Holmes.  This philosophy is attracting more and more support among lawyers and law professors.

The third position described by Professor Sunstein is “minimalism.”  Like pragmatists, whom I have already editorially embraced, minimalists are skeptical about general theories of judicial interpretation, broad judicial agendas, and “movement judges of any kind.”  With that skepticism shaping their philosophy, they are reluctant to exercise judicial power, particularly to elaborate new rights and liberties that lack a clear foundation in our culture, traditions, and practices.  This restraint results in narrow and incremental fact-based decisions, not broad rulings that the country or state may later have cause to regret.  Minimalist judges may be liberal or conservative.  Its most distinguished Supreme Court adherents have been Justice Felix Frankfurter and Justice Sandra Day O’Connor.

The fourth and last position is “fundamentalism.”  Fundamentalists or, as they were described in a previous column, “Originalists” believe the Constitution must be interpreted according to the “original understanding.”  I will not dwell on this school of judicial philosophy because I spent an entire column (January 20, 2006) discussing it except to remind readers that Originalists believe theirs is the only correct school of jurisprudence and that maintaining their philosophy should be a qualification for judicial office.

In future columns, we will explore other issues that will highlight the coming campaign season.  Tune in same newspaper, same edition, same location.

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