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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: “Making” law

Judge Eugene Siler:  “When you deal with statutory law that’s kind of vague, you have to decide a lot of things that Congress didn’t put in there. Maybe they had to pass it as a compromise, so they leave out some of the details and we have to fill them in. Congress knows what we’re going to do if they don’t put in the details of it….

“Most people say they don’t like activist judges, but sometimes judges have to do it because it’s our job to fill in the blanks. In my mind, an activist judge is the type of judge who would raise an issue that the parties didn’t raise at all and decide the case on something that was not part of the briefs or not part of the case, or wanted to change the law or raise an issue that the parties didn’t want or didn’t think about.”

Judge Boyce Martin
Judge Boyce Martin

Judge Boyce Martin:  “We haven’t adopted the Napoleonic Code and we’re not living like the Italians, French, Germans, and Spaniards. We’re using the same system as the English system. That’s part of the struggle of our society today. The attacks on the judiciary have been going on since the Supreme Court began. They’re the easy whipping boy and judges don’t like to be out front….

Chief Justice Myron Steele: “The common law fills the gap when the legislature doesn’t step in with a statute in our state. Maybe there’s a difference between where you draw the line about sensitive social policy issues and where you draw the line about what principles to apply to resolve a dispute between litigants. That social policy overlay is where you get into people’s sensitivity about judges making law and you get crazy phrases about “activist judges.” I think controversies are unavoidable at the level of the United States Supreme Court and maybe at some federal circuit levels and in some states. It may be unavoidable because the high courts have been confronted directly with a social policy question the Constitution or applicable statutes address ambiguously and the court can’t dodge it.”

Chief Justice Cynthia Kinser:  “The dividing line for me is it’s my responsibility to interpret the ambiguous statute, but it’s not my responsibility to put a gloss on it as to what I think it ought to be if I were a member of the General Assembly.” 

Judge J. Harvie Wilkinson III:  “A lot of living constitutionalists have tried to compare their system to the old common law judge. They say they’re not that different from Benjamin Cardozo, who had to recognize the adaptive qualities of law. They say the great characteristics of the common law system are that it’s adaptive and incremental and works on a case by case basis, and that that’s all they’re doing as living constitutionalists. Well, that’s not all they’re doing.

“Common law rulings were handed down by state judges and applied in a particular state. A legislature could overturn them. But these constitutional rulings often just throw federalism overboard. They don’t apply to just one state. They’re saying that it is the final word for the entire country and no legislative authority can overrule them. So, in both the scope and the finality of it, the living constitutionalists are operating totally different from our great common law tradition. For them to try to co-opt that tradition and say that they’re the descendants of the great common law judges is just wrong.”

Empirical study of judicial deliberations

Judge Boyce Martin:  “I’ve been pushed from a moderate middle to far more what people today want to label as liberal, and what I hate the most is that they talk about  which president appointed me.”

Chief Justice Myron Steele:  “From the Delaware high court perspective, if you’re talking about whether it’s Democrat/left as a gross generalization or Republican/right as a gross generalization, we’re uniquely situated. I believe we have the only state constitution which mandates that each of our important courts has to be balanced by party. You can have no more than a majority of one from a political party so party politics is basically out of our system. It’s not an issue….

Chief Justice Cynthia Kinser: “I understand what they’re saying, but the question I would raise is does that mean that someone who’s not been a Republican or a Democrat publicly in their life and career before going on the bench doesn’t have a chance because they’re not tagged as a Republican or a Democrat….?

“Over the years the Virginia Supreme Court has never had the kind of voting bloc that you see in the United States Supreme Court. On any given day, those of us who might be viewed by the outside world as being conservative or liberal are agreeing on issues, and if you look at the history of our court, you’ll see that we do indeed have a lot of unanimous decisions. I’ve been there 16 years and I’d say at least three-fourths of the time or more we’ve had unanimous decisions….

“I think whether you’re a judge or something else, you are the accumulation of all the life experiences that you’ve had. We’re all very different people because of those life experiences. We have different viewpoints, but I think that the beauty of an appellate court is that you bring together in Virginia seven people who come from different backgrounds, who’ve had different experiences and different viewpoints. I think because of that we deliver better decisions in the cases that come before us….

“I sometimes wonder, do our legislative bodies sometimes punt on the really difficult social issues and necessarily force them into the courts? I sometimes wonder if that happens in the federal system especially.”