Politics and Justice Are a Poor Mix : Law: Judges who bemoan the intrusion of politics into the judicial system often fail to see that they invited the problem.

The relationship between the judiciary and the political process continues to fester. The tension was highlighted last month when retiring California Supreme Court Justice Marcus Kaufman in effect charged that the court, under the leadership of former Chief Justice Rose Bird, set out deliberately to sabotage the law that requires capital punishment for certain murderers. Such premeditated undermining of a valid law would place the court squarely in the political arena. Be it abortion rights under Roe vs. Wade, the death penalty, or any one of a large number of politically sensitive issues, the judiciary is increasingly viewed as making public policy rather than merely applying the law.

Until this century, it was generally assumed that it was the sole function of the judiciary to apply the law. Where a subject was covered by statute, the courts would attempt to ascertain the intent of the framers of the statute; where it was not, the courts would search for decisions in prior cases to determine what the law was. Neither individual judges’ social philosophy nor their attitudes toward the particular law were supposed to be a consideration.

This system came under attack by legal philosophers early in the 20th Century. Scholars led by Justice Oliver Wendell Holmes and Harvard’s Roscoe Pound gave respectability to the ideology that the function of the courts was to “do justice” rather than to mechanically apply existing law. This trend toward use of the legal process as a “creative” means of solving actual and perceived social problems has dominated legal education since the 1940s. Judicial decisions are routinely praised or deplored, by the general public, the media and the legal profession, not on the basis of inherent correctness but rather on the basis of the social policies that the decisions foster or hinder.

In the abstract, the concept that a judge should “do justice” rather than “mechanically apply the law” has considerable appeal. In practice, however, this means that cases are decided on an ad hoc basis, based on a particular judge’s subjective interpretation of the result demanded by his or her sense of justice. This has resulted in intrusion by the judiciary into the legislative function, uncertainty in the law, unreasonable demands on the judicial system and attempts at political interference with the judicial system.

To decide what the law ought to be in the light of prevailing social policies is to make a political decision. This type of decision-making has traditionally rested with the legislature. The manner in which legislatures are elected is intended to make them representative of the political mores of their electors. If the electorate feels that the laws do not reflect prevailing social policies, the election mechanism permits them to do something about it. Despite its deficiencies, the process does permit an expression of social values and, more important, it permits changes in social values to be reflected fairly speedily.

Justice, however, demands that judges be impartial. This means that the law should apply equally to all persons. It does not demand, and in fact it should prohibit, that the judge consider the effect of the law on a particular litigant. Nor does justice require that the judge consider whether the law is good or bad; that is a political decision for the legislature.

It is because of the mixing of law with social policy that the independence of the judiciary from political influence continues to be threatened. If judges considered themselves administrators of the law, it would only be necessary to consider the legal abilities of judicial candidates, not their political biases. However, as long as judges continue to make political decisions, the inquiry unfortunately becomes highly relevant. The demand that appointees to judicial office pass a political litmus test prevented a candidate as well-qualified as Robert Bork from assuming his place on the U.S. Supreme Court and it continues to confront other judicial candidates. Members of the judiciary are probably more conscious and concerned about this trend than any other group. Yet many of them fail to recognize that the problem stems from their own result-oriented judicial philosophies.

Judicial independence is a paramount value in our scheme of government. The concept is part of the genius of our federal and state constitutions and has served our society well. Judicial independence is also one of the most fragile concepts in our constitutions. Since the judiciary neither controls its budget nor its enforcement power, it must rely to a significant extent on the goodwill of the other branches of government, and hence of the voting public, to maintain its independence.

Unfortunately, largely as a result of 20th-Century judicial philosophies, judicial independence is increasingly vulnerable. From inquiries into the personal and political attitudes of candidates for the judiciary to personal attacks on judges and justices, our society shows a growing dissatisfaction with judicial decisions that are rightly perceived to be political rather than legal. As a result, attempts to define the criteria for judicial appointment in political terms gain greater acceptance. It is a situation created by at least some judges, but which the judiciary refuses to recognize as its own problem.