The random thoughts of an architect-turned- lawyer from the deep south living in Washington, DC...

Wednesday, May 18, 2005

Wait, the judicial branch isn't supposed to MAKE laws!

I recently had a conversation with my brother regarding why lawyers are at the helm of the axis of evil get a bad rap. Of course this is a conversation that could go on for quite some time. Our discussion over a bottle of Russian wine was sparked by a TV commercial. Picture this:

It starts with a beach scene, waves crashing on the shore, clear water and white sand, woman walking down the beach with her hair flying in the wind. A voice comes on "do you ever feel alone in the world"? (I bypass the "not so fresh feeling" thoughts and assume the commercial is going to be about some dating website.) "You should take comfort in knowing you have somewhere to turn." The words Christian Hill creep up from the bottom of the screen. (It is at this point I have a realization the ad is about one of those new fundamental churches.) A little man with wings flies up to meet the words that are now large and glowing and at the top of the screen. CHRISTIAN HILL is now followed by "Attorney at Law". (I have no idea where to begin defending the practice of law with idiots like this out there.)

And so the conversation began. Initially, the discussion focussed on brother's problems with the judicial branch overstepping their bounds into the legislature. In his words "they are only supposed to enforce the laws, not make them." In a simple world this would be true. On the other hand, what about issues of first impression? When the legislature makes a law, they make it broad enough to cover the people and situations they intend it to cover. This begs the question of what to do with those that fall just outside of the coverage of the line of the law. When the framers of the Constitution set up the separation of powers, did they really mean for situations like this to force the legislature to reevaluate laws for each potential lawbreaker? Or should the judicial system be afforded enough power to handle situations such as these? If the courts are given such powers, concerns then turn to the more pressing issue of where to draw the line to encompass how much power the courts have in "making" law.

This seems to be the uncomfortable sticking point for everyone, including the courts themselves. The contradicting schools of thought with regards to the amount of judicial power often times falls upon the judges themselves to sort through. In the first situation, courts will manipulate the wording or context of a law or situation to make the two fit together. Often times, this is for the sake of fairness. In another situation, courts will take note of the unfair nature of a situation, but claiming their hands are tied, they will leave the law making to the legislature. ("Judges have only a limited power to amend the law; when the subject has been confided to a Legislature, they must stand aside, even though there be a hiatus in completed justice." Cheney Bros. v. Doris Silk Corp. 35 F.2d 279.)

What, then, determines which road a court will take?

Some tend to firmly believe the amount of power a court exhibits in lawmaking has to do with the judges themselves. This leads to great debates over things such as Supreme Court nominees because their personalities and political affiliations may influence the lawmaking in our country. This war between Judicial Activism and Judicial Restraint is one that is presumably nowhere near any resolution.

On the other hand, others believe the control exerted over the law relies on the situations themselves. This can be seen in contract law with the creation of the concept of "good faith" to fill in the holes left in the law for the sake of fairness to a certain party under certain circumstances. There is also debate as to whether courts should be allowed to manipulate the written law for each circumstance. Should we take the textualist view and declare that what the law says is what goes? If so, do we then ignore the other crucial aspect of a law...the intent that the legislature had when passing the law?

Are the courts in the above situations really "making" laws, or are they expanding and interpreting laws? Furthermore, although the judicial system was originally set up to punish wrongdoers...hasn't there been such an expansion entrusting the courts with the right to interpretation? These questions may be such that no one can answer them. (Especially not myself after only one year of law school.) But they are questions that when laid out begin to show the complexity of the legal system in our country. Complexity that makes a statement like "they are only supposed to enforce the laws, not make them" seem illogical.