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  1. gabe says


    All that you say is true, BUT it is unfair to say that the proponents of engagement view the current judicial environment with blinders on. I suspect that Nelly and Bernick are fully aware of the dangers posed by *engaged* judges who also happen to have a preference for a particular policy / ideology. It is why in a most recent piece at Cato, Bernick expressly emphasizes that judges possess and act according to the notion of “independent judgement” / duty.

    No matter what interpretive approach / methodology we seek to deploy, we are always confronted with the peculiar frailties of human agents. Judges, as you say, are no different than any other state agents – this also holds true for Legislators who may also be said to have failed in their *duty* to exercise independent (and *uncorrupted*) judgement.

    Restrain, activism and even engagement will all produce unhappy results should the judicial agent be less than diligent in the exercise of his or her office.

  2. says

    Mark, congrats on another fine essay. I’m looking forward to reading the rest of the series.

    You mention the Texas Supreme Court in the 1980s, when it was dominated by Democratic populist justices who were closely associated, financially and otherwise, with leading personal injury trial lawyers. I was practicing in Texas then and had occasion to appear (via briefs) before that court; their decisions, though, established the statewide legal climate within which all civil litigation was conducted, effectively amounting to a perpetual pro-plaintiff thumb on the scales of civil justice. The particular bit of mischief to which you point, the Lucas case, required a constitutional amendment, via “Prop 12″ in 2003, to correct. (I wrote about that at length back then.)

    However, even granting your argument that the “risk of judicial lawmaking is greater at the state court level than it is at the federal level,” that risk is substantially offset by the fact that it’s a whole lot easier to re-make and reform an elected state-court bench than it is a life-appointed federal bench.

    I’ve seen proof of that with that same Texas Supreme Court you just referenced, which is still known among trial lawyers as the “60 Minutes Court,” referencing a 1978 exposé entitled “Is Justice for Sale?” Within just a very few years in the early 1990s, the membership of that court had changed dramatically, as had its ethics and reputation. A great deal of the credit for that should go to former Texas Chief Justice Thomas R. Phillips, during whose long tenure the Texas Supreme Court went from being a national laughingstock to something quite different. A series of consistent and careful judicial appointments by a series of conservative Republican governors ensured that there were strong candidates, most often running as incumbents, and voters have indeed generally re-elected them. That, plus the Texas Legislature’s various tort reform measures, have indeed dramatically transformed the state’s civil justice system, such that in most of Texas for the last decade or so, the thumb is back on the scales again, but this time on behalf of civil defendants. And for the most part, the jurisprudential damage done by the “60 Minutes Court” has now been purged or at least mitigated, either by the Legislature through tort reform or, in quite a few instances, explicit over-rulings of prior precedents.

    • Mark Pulliam says

      Amen, Bill. (Unfortunately, some elements of the “60 Minutes Court” remain, such as the Edgewood precedent.). And I remember California voters throwing Rose Bird and two of her activist colleagues off the bench in 1986.

  3. R Richard Schweitzer says

    What Mark Pulliam also brings back into focus are the effects at the state levels of the perversions of “our” legal systems into means to hands. The perversion is not contained at the federal appellate levels. It is not contained because of the popular acceptance (and demands) for “purposive” governments at the state and local levels.

    What does the polity of any locality, or of an entire state, want or expect of the uses of its local or state governmental forces? In places like Wellesley, Massachusetts the “public” (or an active sufficiency) may desire the use of local government to impose certain conditions of decorum (no lemonade stands). They may want that instrumentality used to impose “civic” obligations (the cakes for all); many positive and negative impositions for some particular objectives [purposive government].

    The legal systems, local, state and federal are all part of the governmental mechanisms. When the uses become of those mechanisms become purposive (objectives oriented) they carry with them the elements of the legal system including appellate adjudications.

    There appear to be swings into and away from “purposive government” in different regions of the United States. Often it is a matter of differences in degree or intensity of use for objectives.

    However, we may be observing developing patterns of governments which are coalitions of the legislative system, the executive system and the legal system rather than distinct and separate “power structures.” While contests may remain within the coalitions with respect to the determinations of means and the effects of determinations on objectives, it appears that all in tend to govern.

    • R Richard Schweitzer says


      What Mark Pulliam also brings back into focus are the effects at the state levels of the perversions of “our” legal systems into means to *ends*. The perversion is not *constrained* TO the federal appellate levels. It is not *constrained* because *there is* popular acceptance (and demands) for “purposive” governments at the state and local levels.


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