Judge-Made Law?

A California appellate court has ruled that parents without teaching credentials do not have a right to home-school their children. 

Ironically, it was exactly fifty years ago this August that the chief justices of ten states joined together to issue a report critical of our federal judicial system with the following language: “It has long been an American boast that we have a government of laws and not of men.”  That document, entitled “REPORT OF THE COMMITTEE ON FEDERAL STATE RELATIONSHIPS AS AFFECTED BY JUDICIAL DECISIONS” went on to complain that “… the Supreme Court too often has tended to adopt the role of policy-maker without proper judicial restraint.” 

Gaining steam, they went on, “We do not believe that either the framers of the original Constitution or the possibly somewhat less gifted draftsmen of the Fourteenth Amendment ever contemplated that the Supreme Court would, or should, have the almost unlimited policy-making powers it now exercises. It is strange, indeed, to reflect that under a constitution which provides for a system of checks and balances and of distribution of power between national and state governments one branch of one government – the Supreme Court – should attain the immense, and in many respects, dominant, power which it now wields.”

In refreshing if uncharacteristic criticism of their judicial brethren, those state chief justices went on, “We concede that a slavish adherence to stare decisis could at times have unfortunate consequences; but it seems strange that under a constitutional doctrine which requires all others to recognize the Supreme Court’s rulings on constitutional questions as binding adjudications of the meaning and application of the Constitution, the Court itself has so frequently overturned its own decisions thereon, after the lapse of periods varying from one year to seventy-five, or even ninety-five years. (See the tables appended to Mr. Justice Douglas’ address on Stare Decisis, 49 Columbia Law Review 735,756-758.) The Constitution expressly sets up its own procedures for amendment, slow or cumbersome though they may be.”

More to the point, the report notes, “It is our earnest hope which we respectfully express, that that great Court exercise to the full its power of judicial self-restraint by adhering firmly to its tremendous, strictly judicial powers and by eschewing, so far as possible, the exercise of essentially legislative powers when it is called upon to decide questions involving the validity of state action, whether it deems such action wise or unwise. The value of our system of federalism, and of local self-government in local matters which it embodies, should be kept firmly in mind, as we believe it was by those who framed our Constitution.  At times the Supreme Court manifests, or seems to manifest, an impatience with the slow workings of our federal system. That impatience may extend to an unwillingness to wait for Congress to make clear its intention to exercise the powers conferred upon it under the Constitution, or the extent to which it undertakes to exercise them, and it may extend to the slow processes of amending the Constitution which that instrument provides.

The words of Elihu Root on the opposite side of the problem, asserted at a time when demands were current for recall of judges and judicial decisions, bear repeating: “If the people of our country yield to impatience which would destroy the system that alone makes effective these great impersonal rules and preserves our constitutional government, rather than endure the temporary inconvenience of pursuing regulated methods of changing the law, we shall not be reforming. We shall not be making progress, but shall be exhibiting that lack of self-control which enables great bodies of men to abide the slow process of orderly government rather than to break down the barriers of order when they are struck by the impulse of the moment.” (Quoted in 31 Boston University Law Review 43.)  

We believe that what Mr. Root said is sound doctrine to be followed towards the Constitution, the Supreme Court and its interpretation of the Constitution. Surely, it is no less incumbent upon the Supreme Court, on its part, to be equally restrained and to be as sure as is humanly possible that it is adhering to the fundamentals of the Constitution with regard to the distribution of powers and the separation of powers, and with regard to the limitations of judicial power which are implicit in such separation and distribution, and that it is not merely giving effect to what it may deem desirable.”

The committee concluded its report with this language: “The value of a firm statement by us lies in the fact that we speak as members of all the State appellate courts with a background of many years’ experience in the determination of thousands of cases of all kinds.  Surely there are those who will respect a declaration of what we believe.  And it just could be true that our statement might serve as an encouragement to those members of an independent judiciary who now or in the future may in their conscience adhere to views more consistent with our own.”

Despite James Madison’s observation that “in republican government, the legislative power necessarily predominates” (Federalist #51), the past fifty years has seen a steady encroachment of legislative authority by the judiciary on many levels.  And, correspondingly, we have experienced a decline in public respect for the judicial branch.  Only time will tell what will be the conclusion of this individual case.  Meanwhile, Retired Judges of America will work toward restoring proper constitutional balance at all levels, mindful of Justice Byron White’s admonition that “The court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no recognizable roots in the language or design of the Constitution.”

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