Waldron provides this view of the role of a judge as the one most commonly assumed by the public:
Richard A. Posner is currently a judge on the Seventh Circuit Court of Appeals. He would describe judges who claim to adhere to the above standard as "formalists." Posner favors a more active role for a judge than that described above—one in which the judge should accept responsibility for the consequences of his rulings.
Posner seems to believe that there is formative role for judges to play in situations where legislators produce ineptly constructed statutes or where the inherent uncertainties of constitutional interpretation are significant.
Today, most would be of the opinion that "separation of powers" demands that such considerations be left to legislators to sort out. On the other hand, it is fair to ask if Posner’s view is really that foreign to our nation’s traditions.
The theory of legal realism seems to have drawn much of its inspiration from the book of Oliver Wendell Holmes, Jr., The Common Law. Holmes’s book begins with this famous phrase:
Holmes also believed that the purpose of law was the avoidance of undesirable social consequences. These views are consistent with the long tradition of common law.
The system of Common Law might be described as follows:
"A common law system is a legal system that gives great potential precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases….judges have the authority and duty to make law by creating precedent."
Posner’s view seems to be informed by this common law tradition. What is of interest here is that common law was developed by the British over centuries and it became the starting point for all the English-dominated colonies that eventually became independent. This is the form of law that existed at the writing of our Constitution and would presumably have been assumed to continue by the writers of our Constitution. Posner’s perspective might seem strange today, but might have appeared quite reasonable in the eighteenth century.
If we are to fear that Posner’s activism would dangerously allow the personal opinions and biases of judges to enter into our legal proceedings, then it must be argued that our current system, dominated by the concept of "formalism," is inherently superior in the sense of shielding the citizenry from biased and perhaps arbitrary judicial decisions.
Waldron provides this description of the mode of operation of formalists:
Formalists might be said to include originalists, textualists, and even those who adhere to the belief in a "living Constitution." The latter would address a given issue from the beginning as formalists but would be more willing to allow current factors and consequences to "extend" the Constitution as originally written.
Consider the case of the right to abortion. The term is not considered in the Constitution. Therefore any opinion must be based on some secondary consideration. The argument to uphold Roe v. Wade has at various times been identified with patient-physician confidentiality, personal liberty, and equal protection of the law. Those against it would claim that progressive (activist) justices decided the way they did just because that is what they wanted to do.
Those against legal abortion must have secondary bases upon which to justify their opposition. A visit to a page on the website of the Family Research Council that claimed to provide legal arguments against abortion revealed that there were none. The only claim was that some legal experts disagreed with the Supreme Court’s decision. It seems those (activist) justices who would rule against abortion can be described as doing it just because they want to.
The originalists and textualists (a variation on originalism) would claim to adhere strictly to the Constitution.
Clarence Thomas is described as the Justice most dedicated to the concept of originalism. To Thomas, originalism has a very specific meaning. He believes that the words in the Constitution must be interpreted in terms of the public understanding of the meaning at the time they were adopted. This may sound reasonable, but given that the wording of the Constitution was generally arrived at by negotiating differences of opinion—differences that remain in the historical record—how does one arrive at a definitive interpretation? Thomas assumes he is able to do that, and once he arrives at his determination he can overthrow centuries of precedents. Critics of this approach can claim that Thomas has conjured up an activist legal formalism that allows him to do just about anything he wants to do.
Antonin Scalia is identified as the most determined of the textualists. He believes that the only guide he has is the exact wording of laws and articles of the Constitution. Trying to infer intentions is of no interest to him—although he does drop into that mode when it is convenient. Scalia wrote the majority opinion in District of Columbia v. Heller which established (to a point) the right to bear arms as based on the Second Amendment. He used inferences about intentions to justify his opinion, and he also decided to interpret the constitution in such a way that might have left Prosner smiling (sardonically no doubt).
If the Constitution merely says that citizens have the right to bear arms how does a textualist come up with an opinion that also decides to limit that right. The weapons at issue to the founding fathers were the weapons of war. Wouldn’t a strict constructionist—and a sometimes strict originalist—have to conclude that citizens in the twentieth century should also have access to the weapons of war? Scalia chickened out and decided that the unrestricted right only applied to handguns, and only in the home. To do otherwise would have negated many existing regulations and declared unlawful the incarceration of an enormous numbers of criminals. Chaos would ensue.
Critics from both the left and right claimed that Scalia did what he did not based on principle, but based on the desire to accomplish what he set out to accomplish. In other words, he conjured up a legal argument that allowed him to do exactly what he wanted to do.
These considerations do not leave us feeling confident that the judicial activism that Posner recommends is desirable as a matter of course. However, we must also recognize that judicial bias and political intrusion is already so widespread that the concept of a consistent rule of law is at risk of becoming a joke.
How might one address this issue? Can we expect mere mortals to be able to suppress their emotions and biases concerning complex topics? That is probably impossible. Perhaps the next best thing is to come to a means of accommodating the inevitable human bias.
Federal judges and Supreme Court justices are nominated by the president. The president is elected (usually) by a majority of the citizens. That is as close as we get to a true reading of the opinions of the citizenry.
If the problem of judicial bias only becomes a concern when the bias is out of touch with the opinions of the majority, then allow the judicial ranks to become more consistent with current election results. The president should be given more influence over the judiciary. One way to do this is to impose term limits so the president can more frequently replace judges or choose to re-nominate existing ones. If political bias is unavoidable, why not make the political bias more current with political realities?
One doesn’t want the political bias to be too tightly coupled. Setting term limits of 16 years for federal and Supreme Court justices and staggering terms would seem to be a reasonable compromise.
This type of accommodation would enhance the political stakes involved in elections. But they are already high. A woman’s right to an abortion will be determined not by the Constitution, nor by any considerations of fundamental rights or justice. It will be determined by who gets elected president. So why not recognize that reality and let the battle take place in the open in the coming elections.