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Judging the Bench | Judicial Deliberations
Evidence Outside the Trial Record | Constitutional Theory | “Making” Law
Empirical Study of Judicial Deliberations

Judging the Bench: Constitutional theory

Judge Eugene Siler:  “I try to look at it the way the courts have determined it in the past, at least the way the Supreme Court has, and see if I can fit it in with that. If there is no guidance, why we’re freer to go in to see what was really intended from the start, or whether this was part and parcel of what the Founders wanted. I go to the text of the Constitution as much as I can. Sometimes I might have to go back to the proceedings of the Constitutional Convention or the Federalist Papers.”

Judge Boyce Martin:  “I agree with a lot of what Judge Wilkinson has said. However, it is difficult today to interpret a statute’s meaning under the Constitution unless you consider it in the context of today’s world. I agree we should not legislate, but should interpret.

“I think some of the watershed cases where ideals of social justice overrode a legalistic approach was during the New Deal, Brown v.  Board, then probably Roe v. Wade and the affirmative action cases like Michigan v. Gruter, where instead of leaving it up to the elected officials and legislature, the courts determined that the Constitution required something be done now because the legislature had done nothing before….

“Of course, I wrote the first Affordable Care Act opinion that upheld it. I upheld it under the Commerce Clause, and Chief Justice Roberts knew he had to find that it was constitutional. He just couldn’t agree that it was under the Commerce Clause, even though the health industry makes up 15% of the economy….

“I’ve talked at length with many judges in my career about what they think and how, but not as it relates to a given case. I think on constitutional theory most of them feel that we are not in the Scalia mode, but in more of a living constitution mode than has to be adjusted to life as it is in this country today….”

Chief Justice Myron Steele:  “We tend to see ourselves as statutory constructionists.  We’re loath to write in our own views of what the correct policy outcome ought to be, particularly in the absence of any claim for equitable relief. We would try to rationalize whatever result we thought was appropriate as one that was driven by the precise language of federal precedent when it involves the United States Constitution and its principles and our own precedent and the plain language of either our Constitution or the statutes of Delaware.”

Chief Justice Cynthia Kinser:  “I think it’s important to be a judge and not a legislator. I take that very seriously. There are many times where the General Assembly has said something in the statute that is perhaps not exactly what they intended. If it’s ambiguous, then statutory interpretation rules help us discern the legislative intent. If it’s plain and clear, we’re supposed to apply it as written. Perhaps I wouldn’t have voted for the statute, but that’s not my job. I separate out what I might’ve done if I were a legislator from what I do as a judge. The General Assembly has to make the policy determination.”

Judge J. Harvie Wilkinson III:  “My concern is that these theories have mesmerized everybody and have become so terribly seductive that we have almost allowed the theories to serve as a constitution of their own. I think it’s brought us away from certain fundamental aspects of the judicial role, the most important of which is judicial restraint. The different theories of the Constitution have left judges free to roam at will with their own predilections. That’s a very unsettling state of affairs because I don’t believe the Constitution was intended that way. I think that the basic approach to judicial rulings has to be a certain modesty and restraint on the part of the judge.” [See here for a complete conversation on Judge Wilkinson’s approach to constitutional theory]