Jack's Advice for Judges: Some Friendly Amendments, Part 2

Jack's Advice for Judges: Some Friendly Amendments, Part 2

Jack's Advice for Judges: Some Friendly Amendments, Part 2

Slate's blog on legal issues.
April 1 2008 10:58 AM

Jack's Advice for Judges: Some Friendly Amendments, Part 2

6. Use the techniques of common law decision making to extend, limit, and revise doctrines and precedents to help keep them faithful to text and principle as you apply doctrines to new fact patterns and changing circumstances. Most of your work as a judge (and especially a lower court judge) will involve doctrinal development and application. Remember that doctrine and precedent should serve constitutional text and principle, and not the other way around.

Again, too much originalism for my taste.  I would add: Be prepared to back down when your decisions produce a public backlash.  Duck politically sensitive issues if you can.  In emergencies, defer to the president.  Decide cases narrowly.

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7. When in the exercise of your best judgment, doctrinal encrustations and elaborations no longer adequately serve text and principle, or now conflict with them, you should overrule them and create new doctrinal solutions to implement text and principle. Once again be guided by the notion that doctrine and precedent should serve text and principle, and not the other way around. This advice about overruling previous decisions is of particular importance to members of the Supreme Court. If you are a lower court judge, you should do your best to accommodate your judgment in terms of existing upper court precedent.

Jack, did you put this in so that you would have an even 10 rather than 9 principles?  What's wrong with 9 principles?  Or even 8 or 7?  (Is the model the Ten Commandments or a Letterman Top Ten List?)

8. Don't assume that judges are the only people who know what the Constitution means .

Yes!  Most constitutional development occurs outside of the judiciary.  The modern presidency, so different from what the founders envisioned, to the extent they even agreed on what they envisioned, is the result of compromises between Congresses, presidents, parties, etc.; the justices have played a relatively minor role.  I would expand on this principle, and tell judges that other people might very well have a better idea of what the Constitution is or should be, and you need to be prepared to persuade them by argument that their views are wrong, at least if you want to get anywhere with your own.  And don't start messing with extra-judicial constitutional norms that have been evolving on their own unless something is seriously amiss.

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9. Pay attention to the tradition of conflicting interpretations of the Constitution that has been handed down to you as a potential source of enlightenment.

See my comment on #7.

10. Do you best to live up to your judicial oath of office "to administer justice without respect to persons, [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon [you]."

See my comment on #7.

11.  Decide cases in a manner that represents and protects (in as legally principled a way as possible ) the constitutional values of temporally extended majorities.

Oops!  You only had 10 principles, didn't you?  I took #11 from here .  I know, I know, I've mixed up theories again.  Still, the part in parentheses might not be bad advice, with due consideration for the underlined words.  You might add: And don't admit that this is what you are doing!