Why Do We Have Courts and Judges?

With the Democrats in full scream over the nomination of Brett Kavanaugh to the Supreme Court, it's worthwhile to consider just why we have courts and judges.

It took a long time to get from Moses appointing faithful men to hear disputes (Exodus 18:16-21) to our modern courts and judges.  Our modern system started in 1178 under Henry II, when the king appointed five members of his household to "hear complaints and do right."  Over time, it became clear that it was necessary to isolate the functions of making law, executing law, and adjudicating disputes under the law.  If the king was able to make law by decree, carry out laws he decreed, and remove judges at will, the king was the law.  He could rule with a quill and a proclamation.


Judge Kavanauagh's nomination to Supreme Court announced by President Trump (White House photo).

Those three independent functions of government – making, executing, and adjudicating law – became our American separation of powers doctrine.  Congress writes the laws, the president makes sure that the laws are "faithfully executed," and the Courts apply the laws to disputes.  Then we added one crucial element: the Constitution.  It is our highest law, and it is the standard by which all other laws must be measured.  The key question is, "By what standard do we assess constitutionality?"

The left prefers a "living Constitution."  As the late Justice Brennan said, judges must "give meaning" to the Constitution, implying that it has no meaning until the Court declares it.  That allows the Constitution to change as society changes, without the inconvenience of amending it.  It turns the Courts into what the Wall Street Journal calls the left's "preferred legislature."

The right asserts "originalism" or "textualism."  That is, the Constitution is a document that had a particular meaning when it was adopted.  To apply it properly, we must understand what its text meant to the people who wrote it.  To change it, we must amend it.

Amending the Constitution is really hard.  The states have rejected six amendments, including the Equal Rights Amendment.  This difficulty blocks the path to fundamentally transforming America the way the left wants.  So they love it when judges adopt legal theories that let them ignore the original understanding of the law.

That brings us to "What is the law?"

Conceptually, the law is a set of principles that allow us to have an orderly society.  If you act in a proper manner, your actions will be lawful.  But to know what is proper, you must have public standards of behavior that do not change from day to day.  The easiest way for this to happen is to have written statutes.  These documents describe what is and is not acceptable.  Short of such statutes, all of us look to what "The Average Reasonable Person" might do.  Common law embodies this TARP standard, which often makes its way into written statutes.

All of us depend on the foundational premise that law is reliably fixed.  It doesn't change when the wind blows.  It isn't necessary to bring policy preferences to the process the way a "wise Latina" might.  The text of the law tells us how to (not) behave.  Questions come only when the text is unclear.

Suppose that the law is whatever a particular judge decides it is.  If I'm called before a racist judge because my trash-talking on the basketball court offended someone, I might expect to experience harsh penalties.  If the judge is a conciliator, he might take the two of us out to lunch and expect us to "get over it."  How should I know how to behave?

But if I'm taken before a judge who reads the law carefully, I'll receive whatever treatment the law regards as just.  Thus, when Congress passed mandatory sentences for crack cocaine possession that were ten times those for powder cocaine, judges who hated the law found themselves imposing the harsh sentences on lots of young black men.  No "wise Latina" could get around the plain text of the statute.

The remedy for this inequity could not properly come from the bench.  A judge is not allowed to rewrite the law.  No executive with "a pen and a phone" can do it, either.  Only the legislature has the power to change laws.

The first step in understanding a law is to read it!  Usually, that's all that's needed.  But what if it's unclear?  A president may be impeached for "high crimes and misdemeanors."  Does this term of art mean that the president must have committed an indictable offense under criminal law like President Clinton's perjury?  Is tweeting personal insults impeachable?  Researching the original intent still leaves questions.

Most statutes aren't that ambiguous.  But administrative law-making is a real problem.  Congress has become fond of passing vague laws that will say "XYZ agency shall implement this by regulation."  Then XYZ agency goes to town.  Since 1984 (George Orwell, can you hear us?), the Supreme Court has let government agencies expand their powers through a doctrine called "Chevron Deference" (Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 [1984]).  If an agency is not "unreasonable" in its interpretations of a statute, its regulations should be acceptable to the Court.

As Judge Kavanaugh notesChevron encourages agencies "to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints."  "Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch."  Administrative agencies have used it to make rules that stretch the law to the breaking point.  A classic is the "Waters of the USA" rule, where a farmer who cleared brush out of a ditch was fined for "destroying wetlands" when the statute addresses only "navigable waters."  The EPA had become a super-legislature, an unaccountable fourth branch of government that cannot be found in the Constitution.

Should the farmer have expected that this ordinary farm maintenance would be illegal?  Of course not!  But when the Courts accept interpretations that fall outside the text of the law, the rule of law vanishes.  Policy preferences now create "law" that no one can know, which punish even the most law-abiding.

This is exactly what the left demands.  Leftists have been unable to get their policy preferences through Congress.  So they demand that the courts transform the law to match their policy preferences.  Yet at the same time, they demand that a judge be bound firmly by stare decisis.

This Latin phrase means "let the decision stand."  It says that once a question has been decided by the courts, that decision should govern how we understand the law.  The left tells us that stare decisis is central to law.  Why should we argue?  Stare decisis creates a stable understanding of the law so an ordinary person can know how to act.  But the left wants stare decisis only in certain areas.

Roe v. Wade is sacrosanct.  No judge should ever, ever, ever consider overturning it.  But where in the Constitution do we find Roe's "right to privacy"?  And how does a "right to privacy" excuse the destruction of unborn life?  Those real questions aren't answered in Roe.

But what about Dred Scott, which protected slavery, or Korematsu, which legalized FDR's imprisonment of U.S. citizens of Japanese heritage?  Those decisions were stare decisis and overturned, with nary a peep from the left.  But when Janus overturned Abood, the left went bonkers.  Why?  Janus took away money that unions could use to support Democrats.

Let's put this in simple, declarative language.  The left supports a stable set of laws only when it suits the left's policy purposes.  But when the clear text and meaning of the Constitution won't let leftists do what they want, suddenly we have to have a "living Constitution."

America must have understandable laws.  Those laws cannot change just because someone wants a different outcome.  There is a prescribed way for laws to be changed.  Laws must be rewritten by Congress or the Constitution amended by the states.  There's no other way for ordinary citizens to be able to obey the law.

It's crucial for judges to protect the law as written.  Anything else leads to the destruction of civil order and ultimately destroys America.  No judges should be allowed near any court if they do not faithfully apply the text of the law to the questions before them.  Fortunately, Judge Kavanaugh has shown himself to be fully committed to the law.  He deserves our support.

With the Democrats in full scream over the nomination of Brett Kavanaugh to the Supreme Court, it's worthwhile to consider just why we have courts and judges.

It took a long time to get from Moses appointing faithful men to hear disputes (Exodus 18:16-21) to our modern courts and judges.  Our modern system started in 1178 under Henry II, when the king appointed five members of his household to "hear complaints and do right."  Over time, it became clear that it was necessary to isolate the functions of making law, executing law, and adjudicating disputes under the law.  If the king was able to make law by decree, carry out laws he decreed, and remove judges at will, the king was the law.  He could rule with a quill and a proclamation.


Judge Kavanauagh's nomination to Supreme Court announced by President Trump (White House photo).

Those three independent functions of government – making, executing, and adjudicating law – became our American separation of powers doctrine.  Congress writes the laws, the president makes sure that the laws are "faithfully executed," and the Courts apply the laws to disputes.  Then we added one crucial element: the Constitution.  It is our highest law, and it is the standard by which all other laws must be measured.  The key question is, "By what standard do we assess constitutionality?"

The left prefers a "living Constitution."  As the late Justice Brennan said, judges must "give meaning" to the Constitution, implying that it has no meaning until the Court declares it.  That allows the Constitution to change as society changes, without the inconvenience of amending it.  It turns the Courts into what the Wall Street Journal calls the left's "preferred legislature."

The right asserts "originalism" or "textualism."  That is, the Constitution is a document that had a particular meaning when it was adopted.  To apply it properly, we must understand what its text meant to the people who wrote it.  To change it, we must amend it.

Amending the Constitution is really hard.  The states have rejected six amendments, including the Equal Rights Amendment.  This difficulty blocks the path to fundamentally transforming America the way the left wants.  So they love it when judges adopt legal theories that let them ignore the original understanding of the law.

That brings us to "What is the law?"

Conceptually, the law is a set of principles that allow us to have an orderly society.  If you act in a proper manner, your actions will be lawful.  But to know what is proper, you must have public standards of behavior that do not change from day to day.  The easiest way for this to happen is to have written statutes.  These documents describe what is and is not acceptable.  Short of such statutes, all of us look to what "The Average Reasonable Person" might do.  Common law embodies this TARP standard, which often makes its way into written statutes.

All of us depend on the foundational premise that law is reliably fixed.  It doesn't change when the wind blows.  It isn't necessary to bring policy preferences to the process the way a "wise Latina" might.  The text of the law tells us how to (not) behave.  Questions come only when the text is unclear.

Suppose that the law is whatever a particular judge decides it is.  If I'm called before a racist judge because my trash-talking on the basketball court offended someone, I might expect to experience harsh penalties.  If the judge is a conciliator, he might take the two of us out to lunch and expect us to "get over it."  How should I know how to behave?

But if I'm taken before a judge who reads the law carefully, I'll receive whatever treatment the law regards as just.  Thus, when Congress passed mandatory sentences for crack cocaine possession that were ten times those for powder cocaine, judges who hated the law found themselves imposing the harsh sentences on lots of young black men.  No "wise Latina" could get around the plain text of the statute.

The remedy for this inequity could not properly come from the bench.  A judge is not allowed to rewrite the law.  No executive with "a pen and a phone" can do it, either.  Only the legislature has the power to change laws.

The first step in understanding a law is to read it!  Usually, that's all that's needed.  But what if it's unclear?  A president may be impeached for "high crimes and misdemeanors."  Does this term of art mean that the president must have committed an indictable offense under criminal law like President Clinton's perjury?  Is tweeting personal insults impeachable?  Researching the original intent still leaves questions.

Most statutes aren't that ambiguous.  But administrative law-making is a real problem.  Congress has become fond of passing vague laws that will say "XYZ agency shall implement this by regulation."  Then XYZ agency goes to town.  Since 1984 (George Orwell, can you hear us?), the Supreme Court has let government agencies expand their powers through a doctrine called "Chevron Deference" (Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 [1984]).  If an agency is not "unreasonable" in its interpretations of a statute, its regulations should be acceptable to the Court.

As Judge Kavanaugh notesChevron encourages agencies "to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints."  "Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch."  Administrative agencies have used it to make rules that stretch the law to the breaking point.  A classic is the "Waters of the USA" rule, where a farmer who cleared brush out of a ditch was fined for "destroying wetlands" when the statute addresses only "navigable waters."  The EPA had become a super-legislature, an unaccountable fourth branch of government that cannot be found in the Constitution.

Should the farmer have expected that this ordinary farm maintenance would be illegal?  Of course not!  But when the Courts accept interpretations that fall outside the text of the law, the rule of law vanishes.  Policy preferences now create "law" that no one can know, which punish even the most law-abiding.

This is exactly what the left demands.  Leftists have been unable to get their policy preferences through Congress.  So they demand that the courts transform the law to match their policy preferences.  Yet at the same time, they demand that a judge be bound firmly by stare decisis.

This Latin phrase means "let the decision stand."  It says that once a question has been decided by the courts, that decision should govern how we understand the law.  The left tells us that stare decisis is central to law.  Why should we argue?  Stare decisis creates a stable understanding of the law so an ordinary person can know how to act.  But the left wants stare decisis only in certain areas.

Roe v. Wade is sacrosanct.  No judge should ever, ever, ever consider overturning it.  But where in the Constitution do we find Roe's "right to privacy"?  And how does a "right to privacy" excuse the destruction of unborn life?  Those real questions aren't answered in Roe.

But what about Dred Scott, which protected slavery, or Korematsu, which legalized FDR's imprisonment of U.S. citizens of Japanese heritage?  Those decisions were stare decisis and overturned, with nary a peep from the left.  But when Janus overturned Abood, the left went bonkers.  Why?  Janus took away money that unions could use to support Democrats.

Let's put this in simple, declarative language.  The left supports a stable set of laws only when it suits the left's policy purposes.  But when the clear text and meaning of the Constitution won't let leftists do what they want, suddenly we have to have a "living Constitution."

America must have understandable laws.  Those laws cannot change just because someone wants a different outcome.  There is a prescribed way for laws to be changed.  Laws must be rewritten by Congress or the Constitution amended by the states.  There's no other way for ordinary citizens to be able to obey the law.

It's crucial for judges to protect the law as written.  Anything else leads to the destruction of civil order and ultimately destroys America.  No judges should be allowed near any court if they do not faithfully apply the text of the law to the questions before them.  Fortunately, Judge Kavanaugh has shown himself to be fully committed to the law.  He deserves our support.